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[ { "docid": "2820610", "title": "", "text": "8, 1996, the Ohio Court of Appeals rejected his claims. See State v. Dennis, No. 17156, 1996 WL 233501 (Ohio Ct.App. May 8, 1996). Dennis appealed to the Ohio Supreme Court. On September 24, 1997, -that court affirmed Dennis’s conviction and sentence. See State v. Dennis, 79 Ohio St.3d 421, 683 N.E.2d 1096 (1997). The United States Supreme Court denied certiorari. See Dennis v. Ohio, 522 U.S. 1128, 118 S.Ct. 1078, 140 L.Ed.2d 136 (1998). Dennis also exhausted his post-conviction remedies, to no avail. See State v. Dennis, No. 18410, 1997 WL 760680 (Ohio Ct.App.1997) (affirming denial of post-conviction relief); State v. Dennis, No. 98-13, 690 N.E.2d 1287 (Ohio March 11, 1998). On June 30, 1998, Dennis field a petition for writ of habeas corpus. On October 1, 1999, the district court denied his petition and denied Dennis’s request for a certificate of appealability. This Court granted Dennis a certificate of appealability as to six issues. II. Standard of Review We review a district court’s legal conclusions in habeas actions de novo and its factual findings for clear error. Miller v. Francis, 269 F.3d 609, 613 (6th Cir.2001). If, however, the district court bases its decision on the state trial court transcript, and makes no findings of fact, we review the district court’s fact findings de novo as well. Id. III. AEDPA Dennis’s petition was filed on June 30, 1998, after the effective date of the Anti-terrorism and Effective Death Penalty-Act. Pub.L. 104-132, 110 Stat. 1214 (“AEDPA”). Its provisions therefore apply. Id. “Congress enacted AEDPA to reduce delays in the execution of state and federal criminal sentences, ... and to further the principles of comity, finality, and federalism.” Woodford v. Garceau, 538 U.S. 202, 123 S.Ct. 1398, 1401, 155 L.Ed.2d 363 (2003) (internal citations and quotation marks omitted). One of the mechanisms for accomplishing these goals was an amended version of 28 U.S.C. § 2254(d)(1), which places “new constraint[s] on the power of a federal habeas court to grant a state prisoner’s application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court.”" } ]

[ { "docid": "21680274", "title": "", "text": "not, however, challenge the constitutionality of either the subsequent plea of nolo contendere to the manslaughter charge or the resulting sentence. II. ANALYSIS A. Standard of review This case is governed by AEDPA, codified principally at 28 U.S.C. § 2254(d), because Allen filed her habeas petition in October of 2001, well after AEDPA’s effective date of April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under AEDPA, factual findings made by a state court are presumed correct unless the petitioner rebuts the presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). We review the district court’s decision to deny a writ of habeas corpus de novo. Gonzales v. Elo, 233 F.3d 348, 352 (6th Cir.2000). B. Does a state postconviction motion claiming ineffective assistance of appellate counsel restart AEDPA’s statute of limitations? AEDPA imposes a one-year statute of limitations for habeas petitions that challenge state-court judgments. The relevant section provides as follows: (1) A 1-year statute of limitations shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of— (A) the date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review.... 28 U.S.C. § 2244(d). AEDPA further provides, however, that the statute of limitations is tolled for “[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-”28 U.S.C. § 2244(d)(2). 1. When did direct review of Allen’s assault conviction conclude? The timeliness of Allen’s petition turns on when the judgment in her state case became final, thereby starting AEDPA’s one-year limitations period. According to the district court, the triggering event occurred when the Michigan Court of Appeals affirmed Allen’s manslaughter conviction and sentence on September 23, 1997. The district court reasoned that Allen’s conviction became final 56 days later, on November 18, 1997, when her time to appeal to the Michigan" }, { "docid": "16310810", "title": "", "text": "the Antiterrorism and Effective Death Penalty Act of 1996 imposed a requirement that § 2255 petitioners obtain certificates of appealability in order to appeal district court decisions denying relief. In Lindh v. Murphy, however, the Supreme Court held that Chapter 153 cannot be applied retroactively to cases pending on the enactment date of the statute, April 24,1996.” (citation omitted)). This Term, however, the Supreme Court held this view to be incorrect. In Slack v. McDaniel, - U.S.-, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), the Supreme Court held that “when a habeas corpus petitioner seeks to initiate an appeal of the dismissal of a habeas corpus petition after April 24, 1996 (the effective date of AEDPA), the right to appeal is governed by the certificate of appealability (COA) requirements now found at 28 U.S.C. § 2253(c).” Id. at 1600. Therefore, with respect to appeals initiated after the effective date of AEDPA in habeas proceedings commenced prior to that date, pre-AEDPA law governs the appellate court’s review of the trial court’s ruling while AEDPA’s requirement of a certificate of appealability governs the right to appeal. Although in the instant case the district court granted a certificate of probable cause rather than a certificate of ap-pealability, the issues involved in this appeal each satisfy the standard for issuance of a certificate of appealability, and so we proceed to review the merits of Mackey’s two claims. II. ANALYSIS “We review a district court’s denial of habeas corpus relief de novo, but we review any findings of fact made by the district court for clear error.” Combs v. Coyle, 205 F.3d 269, 277 (6th Cir.2000). A state court’s factual findings are entitled to complete deference if supported by the evidence. See id. Because Mackey’s ha-beas petition was filed prior to the effective date of AEDPA, we apply the pre-AEDPA version of 28 U.S.C. § 2254 in reviewing the district court’s ruling. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). A. Right to Present an Insanity Defense Mackey first argues that the trial court’s “restrictive rulings on the" }, { "docid": "18495509", "title": "", "text": "hearing on some of McGahee’s claims, and denied McGahee’s Rule 32 petition. The Alabama Court of Criminal Appeals affirmed. McGahee v. State, 885 So.2d 191 (Ala.Crim.App.2003), cert. denied, Ex parte McGahee, 885 So.2d 230 (Ala.2004). McGahee filed a petition for the writ of habeas corpus in the United States District Court for the Southern District of Alabama in 2005. He alleged numerous grounds for relief, including the Batson claim from his first direct appeal. The district court barred a portion of McGa-hee’s Batson claim as unexhausted. The district court issued an order denying McGahee’s remaining Batson claims and other claims on the merits on October 15, 2007. McGahee v. Campbell, No. 05-0042, 2007 WL 3037451 (S.D.Ala. Oct. 15, 2007). McGahee filed a notice of appeal. The district court granted a Certificate of Ap-pealability on one issue: whether the prosecutor used his peremptory strikes in a racially discriminatory manner to remove all of the African-American jurors from McGahee’s venire. II. STANDARD OF REVIEW Because McGahee filed his federal habe-as petition after April 24, 1996, this case is governed by 28 U.S.C. § 2254 as modified by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997). AEDPA “establishes a highly deferential standard for reviewing state court judgments.” Parker v. Sec’y for Dep’t. of Corr., 331 F.3d 764, 768 (11th Cir.2003). Under AEDPA, a federal court may only grant the writ of habeas corpus if the state court’s determination of a federal claim was “(1) ... contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) ... was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). The evaluation of a prosecutor’s race-neutral explanations under Batson is a “pure issue of fact ... peculiarly within a trial judge’s province.” McNair v. Campbell, 416 F.3d 1291, 1310 (11th Cir.2005). Therefore, a Batson claim at habeas is often analyzed under AEDPA" }, { "docid": "22159500", "title": "", "text": "counsel, Seymour appealed her conviction to the Ohio Court of Appeals for the Fourth Appellate District, raising twelve claims of error; Seymour also supplemented her counsel’s brief with a pro se brief that raised an additional fifteen claims. The court of appeals affirmed the conviction. See State v. Seymour, No. 90 CA 38, 1993 WL 472875 (Ohio Ct.App. Nov.9, 1993), appeal dismissed, 69 Ohio St.3d 1436, 632 N.E.2d 519 (1994). With the help of yet another attorney, Seymour raised six claims before the Ohio Supreme Court, which dismissed her appeal as presenting no substantial constitutional question. Acting pro se, Seymour filed a motion for reconsideration in the Ohio Supreme Court, arguing that the counsel who represented her before that court was ineffective due to his failure to raise a number of claims enumerated by her. The motion was denied without opinion. While her direct appeal was still pending, Seymour filed a habeas corpus petition in the U.S. District Court for the Southern District of Ohio, claiming only that her appeal bond was excessive. That court dismissed the habeas petition on the merits. On August 2, 1996, Seymour filed the instant petition, raising forty-six claims of error. In a lengthy opinion, the district court considered all of Seymour’s claims, finding some of them to be proeedurally defaulted and the remainder to be without merit. Seymour timely appealed, and a Certificate of Appealability was granted as to all issues. II. ANALYSIS A. Standard of Review This court reviews the district court’s legal conclusions de novo and its findings of fact for clear error. See Harris v. Stovall, 212 F.3d 940, 942 (6th Cir.2000). Because Seymour’s habeas petition was filed after the Antiterrorism and Effective Death Penalty Act (AEDPA) became effective on April 24, 1996, the provisions of that act apply to Seymour’s case and prescribe the appropriate standard of review. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Harris, 212 F.3d at 942. Under AEDPA, a writ of habeas corpus shall not issue unless the state court adjudication “resulted in a decision that was contrary" }, { "docid": "8391865", "title": "", "text": "(6th Cir.1999). We review the district court’s findings of fact for clear error. Id.; Carson v. Burke, 178 F.3d 434, 436 (6th Cir.1999). Because the Petition was filed after April 24, 1996, the effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), our review of the decisions of the state trial and appellate courts is governed by AEDPA. See Lindh v. Murphy, 521 U.S. 320, 323, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (holding AEDPA applicable to petition filed on or after AEDPA's effective date); Barker v. Yukins, 199 F.3d 867, 871 (6th Cir.1999). In AEDPA, Congress provided that: An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim- resulted in a decision that was contrary to, or an involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.... 28 U.S.C. § 2254(d)(1). In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court interpreted the statutory standard for reviewing a petition for writ of habeas corpus. In particular, the Court explained that a state court decision is \"contrary to\" the Supreme Court's precedent \"if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law\" or \"if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the result reached by the Supreme Court].\" Williams, 529 U.S. at 405, 120 S.Ct. 1495; see Lewis v. Wilkinson, 307 F.3d 413, 418 (6th Cir.2002). A state court decision may be an \"unreasonable application\" of clearly established Supreme Court precedent \"if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular ... case\" or \"if the state court either unreasonably extends" }, { "docid": "1316520", "title": "", "text": "a writ of habeas corpus in the United States District Court for the Southern District of Ohio, alleging twenty-five constitutional errors. Joint Appendix (“J.A.”) at 9-72 (Goff Pet. for Writ). Without holding an evidentiary hearing, the district court denied each claim. Goff v. Bagley (Goff TV), No. 1:02-ev-307, 2006 WL 3590369 (S.D.Ohio Dec. 1, 2006). Goff filed a motion for a certificate of appealability (“COA”), and the district court certified seventeen claims for appellate review, including whether Goff received ineffective assistance of appellate counsel because his appellate counsel failed to raise the issue of Goffs right to allocution before sentencing. Goff v. Bagley (GoffV), No. 1:02-cv307, 2007 WL 2601096, at *10-11, *15, *21 (S.D.Ohio Sept.10, 2007) We now consider each of Goffs arguments. II. ANALYSIS A. Standard of Review “In a habeas corpus proceeding, this Court reviews a district court’s legal conclusions de novo and its factual findings for clear error.” Smith v. Mitchell, 567 F.3d 246, 255 (6th Cir.) (internal quotation marks omitted), cert. denied, — U.S. -, 130 S.Ct. 742, — L.Ed.2d - (2009). Goff filed his habeas petition in May 2002, after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and, thus, AED-PA governs our review of Goffs claims. Lindh v. Murphy, 521 U.S. 320, 326-27, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). AEDPA provides that (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d) (emphases added). The Supreme Court has explained that [ujnder the “contrary to” clause, a federal" }, { "docid": "8391864", "title": "", "text": "that he had remained silent during custodial questioning on the advice of counsel was contrary to or an unreasonable application of Supreme Court precedent as set forth in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and other cases. In a September 25, 2001 decision, the district court conditionally granted the Petition, finding Petitioner’s Batson claim meritorious. The district court concluded that Petitioner’s Doyle claim had been procedurally defaulted and denied his other claims. Respondent now appeals the district court’s decision and concomitant judgment granting Petitioner relief pursuant to 28 U.S.C. § 2254 on the Batson claim. As mentioned above, though Petitioner seeks to inject the Doyle claim into this appeal, he has neither lodged a cross-appeal nor obtained a certificate of appealability from the district court on this issue. The district court stayed the grant of the writ of habeas corpus pending this appeal. II. Standard of Review This Court reviews a district court’s decision to grant habeas corpus relief de novo. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir.1999). We review the district court’s findings of fact for clear error. Id.; Carson v. Burke, 178 F.3d 434, 436 (6th Cir.1999). Because the Petition was filed after April 24, 1996, the effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), our review of the decisions of the state trial and appellate courts is governed by AEDPA. See Lindh v. Murphy, 521 U.S. 320, 323, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (holding AEDPA applicable to petition filed on or after AEDPA's effective date); Barker v. Yukins, 199 F.3d 867, 871 (6th Cir.1999). In AEDPA, Congress provided that: An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim- resulted in a decision that was contrary to, or an involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court" }, { "docid": "20123415", "title": "", "text": "request by the panel, the parties submitted letter briefs concerning the impact of Ice on the current appeal. II. ANALYSIS A. Standard of Review “We review de novo a district court’s determinations regarding a habeas petitioner’s claim of ineffective assistance of counsel.” Mason v. Mitchell, 543 F.3d 766, 771 (6th Cir.2008). Moreover, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs all habeas petitions filed after AEDPA’s effective date. See Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). AEDPA provides that An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(l)-(2) (emphasis added). However, AEDPA’s “deferential standard of review ... applies only to a claim that has been adjudicated on the merits in State court proceedings.” Brown v. Smith, 551 F.3d 424, 428 (6th Cir.2008) (internal quotation marks omitted). When AEDPA deference does not apply, we apply the preADEPA standard of review and review questions of law de novo and questions of fact for clear error. Brown, 551 F.3d at 430; see also Maples v. Stegall, 340 F.3d 433, 436 (6th Cir.2003). In the instant case, it is clear that Evans’s ineffective-assistance-of-appellate-counsel claim was not adjudicated on the merits in the Ohio Supreme Court; rather, the Ohio Supreme Court, after granting discretionary review of the issue, dismissed the case sua sponte, explaining only that discretionary review “ha[d] been improvidently accepted pursuant to the rule relating to ineffective assistance of counsel announced in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d" }, { "docid": "9369810", "title": "", "text": "his claim that his counsel .had rendered ineffective assistance by failing to object to the prosecutor's allegedly discriminatory use of peremptory challenges during the brothers’ joint trial. .The Honorable David L. Piester, United States Magistrate Judge for the District of Nebraska. . In light of our holding, we deny as moot the state's motion to strike that portion of Carter’s brief that raises issues not specified in the district court's certificate of appealability. . Although the AEDPA altered the substantive standards under which federal courts review state court determinations of law and fact, these substantive changes do not apply retroactively to cases filed prior to the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, -, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997); Tiedeman, 122 F.3d at 521; Henderson v. Norris, 118 F.3d 1283, 1288 n. 2 (8th Cir.1997), cert. denied, - U.S.-, 118 S.Ct. 1081, 140 L.Ed.2d 138 (1998). Because Carter’s habeas petition was filed more than two years before the AED-PA's effective date, the Act’s more deferential standards of review, now codified at 28 U.S.C. § 2254 (1998), are not applicable to this case. .Although Batson was decided twenty days after the conclusion of Carter’s trial, the Supreme Court has held that Batson applies \"retroactively to all cases, state or federal, pending on direct review or not yet final” at the time of the decision. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Thus, because Carter had not been sentenced at the time Batson was decided, its mandates are applicable to his case. . Ordinarily, a claim that peremptory challenges have been exercised in a discriminatory manner is procedurally defaulted if there has been no timely objection. See United States v. Parham, 16 F.3d 844, 847 (8th Cir. 1994); Sledd v. McKune, 71 F.3d 797, 799 (10th Cir.1995); Jones v. Butler, 864 F.2d 348, 369-70 (5th Cir.1988); Government of the Virgin Islands v. Forte, 806 F.2d 73, 75-76 (3d Cir.1986) (subsequent history omitted). However, because the state failed to raise the defense of procedural default in its answer to Carter’s" }, { "docid": "22408678", "title": "", "text": "OPINION GORDON J. QUIST, District Judge. This appeal of the denial of a habeas corpus application requires us to apply the provisions of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-182, 110 Stat. 1214 (1996) (“AEDPA”). Donald Harris, a Michigan state prisoner serving a mandatory life term for first-degree felony-murder, appeals from an order of the district court denying his application for habeas relief filed pursuant to 28 U.S.C. § 2254. The victim was John Anthony, who was killed at gunpoint while working in his store in Detroit. Harris did not commit the crime alone. Two others, Stanley West and Frederick Wilkes, were tried together and convicted of the murder. Harris was tried later. In this appeal, Harris contends that he was denied due process of law when, as an indigent defendant, he was denied free transcripts of the earlier trial of West and Wilkes. Harris claims that the transcripts were necessary for effective impeachment of the state’s witnesses, which would support his theory of innocence. The district court held that petitioner had adequate alternatives to the transcripts because copies of the preliminary examination transcripts from the prior trial had been filed. The district court also found that any error was harmless. The underlying habeas action was filed in early 1997, and the standards under the AEDPA apply. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 2067, 138 L.Ed.2d 481 (1997); Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir.1997). Although the district court incorrectly applied the standards under the AEDPA, we affirm the result it reached. I. STANDARD OF REVIEW This court applies de novo review to the decision of the district court in a habeas corpus proceeding. See, e.g., Harpster, 128 F.3d at 326; West v. Seabold, 73 F.3d 81, 84 (6th Cir.1996). Federal habeas review of the state court’s decision is governed by the standards established by the AEDPA. See Harpster, 128 F.3d at 326. Under the AEDPA, an application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be" }, { "docid": "6902451", "title": "", "text": "The district court did not specifically address whether Weaver’s petition should be analyzed under AEDPA, concluding that a Batson violation had occurred even if the state trial court’s actions were examined under the heightened standard. In addition, the district court addressed only the state trial court’s decision, and did not consider whether the Missouri Supreme Court decision was contrary to, or involved an unreasonable application of Batson. After granting Weaver a writ based upon the Batson claim, the district court declined to address Weaver’s remaining twenty-one claims. DISCUSSION I. Application of AEDPA As a threshold matter, we must decide whether AEDPA, and its new standard of review, applies to Weaver’s habeas petition. Weaver asks us to apply the preAEDPA standard. He filed his first petition on April 18, 1996, six days before AEDPA took effect. That petition was dismissed without prejudice for failure to exhaust state remedies. After exhausting state remedies, Weaver returned to federal court on November 12, 1996. He notes that, under pre-AEDPA law, the second filing constituted a mere continuation of the first filing, because the first was not adjudicated on the merits. See Sanders v. United States, 373 U.S. 1, 17, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). Thus he argues that the standard in effect when he filed his first petition applies. We disagree, AEDPA’s provisions apply to all habeas corpus petitions filed after the Act’s effective date. Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 138 L.Ed.2d 481-(1997). We hold that this rule applies even when a prisoner’s original petition was filed prior to AEDPA’s effective date and dismissed without prejudice for failure to exhaust state remedies. See Barrientes v. Johnson, 221 F.3d 741, 751 (5th Cir.2000); see also Mancuso v. Herbert, 166 F.3d 97, 101 (2nd Cir.1999). Weaver’s argument proves a different point. We agree that Weaver’s second, post-AEDPA filing isn’t a second or successive petition. See Slack v. McDaniel, 529 U.S. 473, 484-87, 120 S.Ct. 1595, 1604-05, 146 L.Ed.2d 542 (2000). But “whether a petition is a ‘second or successive’ application under the AEDPA is an entirely different question” than" }, { "docid": "18132174", "title": "", "text": "petition for state post-conviction relief in 1986 alleging ineffective assistance of counsel and other constitutional errors. The trial court conducted an evidentiary hearing and denied relief on all claims. The Tennessee Court of Criminal Appeals affirmed. Harries filed a second petition in 1993, challenging the application of the felony-murder aggravating circumstance, and the trial court again denied relief. The Court of Criminal Appeals found the use of the felony-murder aggravating circumstance invalid under state law but held the application of that aggravating factor harmless error. In 1999 Harries amended his stayed ha-beas petition. Following an evidentiary hearing, the district court found Harries’s prosecutorial misconduct and ineffective-assistanee-of-counsel claims warranted granting the writ with respect to the penalty phase of his trial. The court denied the writ as to all other claims. II. STANDARD OF REVIEW Because Harries filed his habeas corpus petition before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, we apply the pre-AEDPA standard of review. Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). That standard entitles Harries to have the federal habeas court “ ‘make its own independent determination of his-federal claim, without being bound by the determination on the merits of that claim reached in the state proceedings.’ ” Buell v. Mitchell, 274 F.3d 337, 344 (6th Cir. 2001) (quoting Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). A district court may grant the writ if the state-court conviction violated the Constitution, laws, or treaties of the United States. Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). This court reviews district courts’ dispositions of habeas petitions de novo and findings of fact for clear error. Rickman v. Bell, 131 F.3d 1150, 1153 (6th Cir.1997). Questions of law or mixed questions of law and fact are reviewed de novo. Coleman v. Mitchell, 244 F.3d 533, 538 (6th Cir.2001). We assume the correctness of state courts’ factual findings unless convincing contrary evidence exists. McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir.1996), overruled on other grounds by" }, { "docid": "4389789", "title": "", "text": "Stat. 1214 (1996) (“AEDPA”), is applicable to Wick-line’s petition. Wickline’s Rule 59(e) motion was denied. II. STANDARD OF REVIEW A. AEDPA In a habeas proceeding, this court reviews a district court’s legal conclusions de novo and its factual findings for clear error. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir.1999). Because Wickline filed his habeas petition on May 31, 1996, after the effective date of AEDPA, this court reviews the petition under the standards set forth in AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Williams v. Coyle, 167 F.3d 1036, 1040 (6th Cir.1999) (“[A] federal habeas corpus case is filed or pending for the purposes of Lindh and the AEDPA only when the petition for the writ is filed.”). As amended, 28 U.S.C. § 2254(d) provides as follows: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). “The threshold question under AEDPA is whether [the petitioner] seeks to apply a rule of law that was clearly established at the time his state-court conviction became final.” Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The phrase “clearly established Federal law, as determined by the Supreme Court of the United States” refers to “the holdings, as opposed to the dicta,” of the Supreme Court. Id. at 412, 120 S.Ct. 1495. B. Procedural Default The district court concluded that many of Wickline’s claims are procedurally defaulted for failure to raise them at the earliest opportunity. When a petitioner" }, { "docid": "18154973", "title": "", "text": "Limbert’s report and recommendation. The district court issued a certificate of appealability as to three issues: “whether [Bugh’s] federal constitutional rights were violated by the introduction of other acts testimony, by the introduction of hearsay testimony, or by the failure of his counsel to move for an independent [psychological] examination of the victim.” On October 12, 2001, this Court denied Bugh’s application for a partial certificate of appealability as to the remaining issues. II. DISCUSSION A. Standard of Review In an appeal of a habeas proceeding, we review the legal conclusions of the district court de novo and its factual findings for clear error. Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir.2002); Miller v. Francis, 269 F.3d 609, 613 (6th Cir.2001). “When the district court relies on a transcript from the petitioner’s state trial and makes no independent determinations of fact, we review the district court’s factual findings de novo, as well.” Withrow, 288 F.3d at 850. B. Habeas Standards and the Antiterrorism and Effective Death Penalty Act Because Bugh’s habeas petition was filed on October 23, 1996, it is subject to the provisions of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”), which became effective on April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir.1997). Under AEDPA, an application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Harris v. Stovall, 212 F.3d 940, 942 (6th Cir.2000) (quoting 28 U.S.C. § 2254(d)). Findings of fact made" }, { "docid": "20123414", "title": "", "text": "deficient for failing to at least raise the Blakely issue” on appeal. Id. Additionally, on the issue of prejudice, the district court noted that it could “have no sure way of knowing what might have happened had Petitioner’s case been remanded for re-sentencing by the state court,” but that it could not “say for sure that Petitioner, had he been resentenced prior to Foster, would have received the same sentence.” Id. Thus, the district court concluded that Evans had shown prejudice. The district court conditionally granted Evans’s petition for a writ of habeas corpus and ordered that Evans be resentenced within 90 days or released. Hudson timely appealed. After the parties filed their briefs in this court, but before oral argument, the United States Supreme Court issued an opinion in Oregon v. Ice, — U.S. -, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), holding that allowing state judges to find facts when determining whether to impose consecutive sentences does not violate the Sixth Amendment as interpreted by Blakely. Id. at 714-15. In response to a request by the panel, the parties submitted letter briefs concerning the impact of Ice on the current appeal. II. ANALYSIS A. Standard of Review “We review de novo a district court’s determinations regarding a habeas petitioner’s claim of ineffective assistance of counsel.” Mason v. Mitchell, 543 F.3d 766, 771 (6th Cir.2008). Moreover, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs all habeas petitions filed after AEDPA’s effective date. See Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). AEDPA provides that An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based" }, { "docid": "4389788", "title": "", "text": "OPINION SILER, Circuit Judge. Petitioner William D. Wickline, an Ohio death row inmate, appeals the denial of his Rule 59(e) motion to alter or amend the district court’s judgment dismissing his petition for a writ of habeas corpus. For the following reasons, we AFFIRM. I. BACKGROUND Wickline was convicted by a three-judge court of two counts of aggravated murder, for the deaths of Christopher and Peggy Lerch. The panel sentenced Wickline to life imprisonment on one count and to death on the other. After unsuccessful direct appeals and state post-conviction proceedings, Wickline filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Finding that Wickline’s forty-two claims were either procedurally defaulted or lacked sufficient merit to warrant granting the writ, the district court dismissed his petition. Both Wickline and respondent (the “State”) filed motions to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e). The district court granted the State’s motion and amended the judgment to hold that the Antiterrorism-and Effective Death Penalty Act of 1996, Pub.L. No. 104-182, 110 Stat. 1214 (1996) (“AEDPA”), is applicable to Wick-line’s petition. Wickline’s Rule 59(e) motion was denied. II. STANDARD OF REVIEW A. AEDPA In a habeas proceeding, this court reviews a district court’s legal conclusions de novo and its factual findings for clear error. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir.1999). Because Wickline filed his habeas petition on May 31, 1996, after the effective date of AEDPA, this court reviews the petition under the standards set forth in AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Williams v. Coyle, 167 F.3d 1036, 1040 (6th Cir.1999) (“[A] federal habeas corpus case is filed or pending for the purposes of Lindh and the AEDPA only when the petition for the writ is filed.”). As amended, 28 U.S.C. § 2254(d) provides as follows: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the" }, { "docid": "15396027", "title": "", "text": "by Sanborn’s habeas application, vacated his sentence of death, affirmed his convictions, and remanded to the state trial court for further proceedings. Id. at *34-35. At the same time, the district court granted Sanborn a Certificate of Appealability (“COA”) as to three issues, all of which related to the use of Reverend Brown’s testimony during Sanborn’s second trial. On March 7, 2007, Warden Parker and the Attorney General of the Commonwealth of Kentucky filed a Notice of Appeal from the district court’s judgment granting habeas relief to Sanborn. On March 14, 2007, Sanborn followed with his own notice of appeal as to the three issues on which the district court had granted a COA. We subsequently granted a motion to expand Sanborn’s COA to include four additional issues. The Warden’s appeal was designated Case No. 07-5309; San- born’s appeal was designated Case No. 07-5310. Both appeals were consolidated for briefing and argument, and we decide them both now. II “We review de novo a district court’s decision to grant or deny a petition for a writ of habeas corpus.” Joseph v. Coyle, 469 F.3d 441, 449 (6th Cir.2006). A habeas application that is made by a person in custody pursuant to the judgment of a state court may be entertained “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Because Sanborn’s habeas petition was filed in October 1999, it is subject to the standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). AEDPA provides that: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as" }, { "docid": "22159501", "title": "", "text": "dismissed the habeas petition on the merits. On August 2, 1996, Seymour filed the instant petition, raising forty-six claims of error. In a lengthy opinion, the district court considered all of Seymour’s claims, finding some of them to be proeedurally defaulted and the remainder to be without merit. Seymour timely appealed, and a Certificate of Appealability was granted as to all issues. II. ANALYSIS A. Standard of Review This court reviews the district court’s legal conclusions de novo and its findings of fact for clear error. See Harris v. Stovall, 212 F.3d 940, 942 (6th Cir.2000). Because Seymour’s habeas petition was filed after the Antiterrorism and Effective Death Penalty Act (AEDPA) became effective on April 24, 1996, the provisions of that act apply to Seymour’s case and prescribe the appropriate standard of review. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Harris, 212 F.3d at 942. Under AEDPA, a writ of habeas corpus shall not issue unless the state court adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” 28 U.S.C. § 2254(d)(1), or was based on “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(2). Noting that AEDPA “places a new constraint on the power of a federal habeas court to grant a state prisoner’s application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court,” the Supreme Court illuminated the meaning of § 2254(d)(1) in Williams v. Taylor, — U.S. -, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Id. at -, 120 S.Ct. at 1523. A state-court decision is “contrary to” Supreme Court precedent “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law,” or “if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent” and arrives at a different result. Id. at-, 120 S.Ct. at 1519. A state-court" }, { "docid": "13788203", "title": "", "text": "Circumstantial evidence in the record supports the state habeas court's finding that Eagle’s appellate attorney did not overlook the Batson claim on appeal, but, rather, made a tactical decision not to raise it. Eagle's habeas filings suggest that, before attempting to raise the Batson claim in a pro se supplemental brief to the Georgia Supreme Court, he first asked his appellate attorney to raise the Batson issue in her brief. . Since Eagle filed his petition under § 2254 with the district court in June 1995, prior to AEDPA's April 24, 1996 effective date, the standard of review prescribed in the pre-AED-PA version of § 2254 governs our review of Eagle's claim. See Lindh v. Murphy, 521 U.S. 320, 327, 117 S.Ct. 2059, 2063 138 L.Ed.2d 481 (1997) (holding that the AEDPA amendments to § 2254 apply only to cases filed after AEDPA's effective date). In applying the pre-AEDPA version of § 2254(d) to Eagle's Batson theory of ineffective assistance of appellate counsel, we presume correct any written findings of fact made by the state habeas court unless a statutory exception applies. The only factual finding bearing on the claim under review in this case was that Eagle's appellate counsel raised the three claims on appeal that she deemed most meritorious. The state court observed that Eagle had not adduced any evidence in his habeas hearing demonstrating that his appellate counsel was ineffective for failing to raise the Batson claim on appeal. This observation led the state habeas court to conclude that Eagle could not succeed on his Batson theory of ineffective assistance of appellate counsel because he had developed no facts in his habeas evidentiary hearing to support that claim. While we are bound by the state court’s finding that Eagle's appellate attorney raised the three claims she deemed worthy of appellate review, the state court's legal conclusion — that the Batson claim must fail since Eagle adduced no evidence other than the transcript of the jury selection proceeding (including the Batson objection discussion in the judge's chambers) to show that his appellate counsel should have raised the Batson" }, { "docid": "5001590", "title": "", "text": "Court of Ohio issued an order denying leave to appeal and dismissing the appeal “as not involving any substantial constitutional question.” State v. Braxton, 98 Ohio St.3d 1462, 783 N.E.2d 521 (2003) (unpublished table decision). Braxton thereafter filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in federal district court, averring, inter alia, Batson error with regard to Juror No. 14. Ultimately, on March 1, 2007, after referral of the matter to a magistrate judge, the district court issued an Opinion and Order granting Braxton a conditional writ of habeas corpus on his Equal Protection claim. Reviewing the case under the applicable standards of the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), the district court held that the evidence is clear and convincing that the prosecutor’s stated justifications for excusing Juror No. 14 were a pretext for discrimination. The trial court failed to address the blatant inconsistency between the juror’s actual response and the prosecutor’s claims in Batson inquiry, and the appellate court unreasonably determined that the trial court did not err. Additionally, the appellate court made an unreasonable application of Batson in finding that Mr. Braxton did not satisfy his prima facie case when such matter had become moot. The district court therefore ordered Brax-ton’s state court convictions and sentences to be vacated, unless the State of Ohio commenced a new trial against him within 120 days of entry of the judgment. This timely appeal by respondent Gansheimer followed. II. We review the district court’s legal conclusions in habeas proceedings de novo and its findings of fact for clear error. Harris v. Haeberlin, 526 F.3d 903, 909 (6th Cir.2008). AEDPA supplies the narrow parameters of federal habeas review of state court proceedings, providing that an application for a writ of habeas corpus shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless adjudication of the claim: 28 U.S.C. § 2254(d); Harris, 526 F.3d at 909-10. (1) resulted in a decision that was contrary to, or involved an" } ]

[ { "docid": "16546480", "title": "", "text": "MEMORANDUM OPINION AND ORDER NEESE, District Judge. The plaintiff-relator has moved the Court to set aside the jury verdict of just compensation of $225,000.00 for the 570-acre farm taken herein for public use in connection with the Tims Ford dam and reservoir project. The gist of the grounds urged in support thereof is that the compensation awarded-is excessive under all of the proof. This Court has not only the power and authority, but the duty, to set aside the verdict of a jury and grant a new trial, when, in the judgment and discretion of the Court, the amount of compensation is excessive. The exercise of this power is subject to no fixed rule, except a consideration of what is just. Felton v. Spiro, C.C.A.6th (1897), 78 F. 576, 582-583. But, to warrant a new trial herein, the Court must find the verdict so manifestly and palpably against the evidence as to compel the conclusion that it is contrary to right and justice. United States v. 113.1 Acres of Land, D.C.Maine (1942), 42 F.Supp. 582, 583 [1]; United States v. 1,192 Acres of Land, Etc., D.C.Pa. (1944), 55 F.Supp. 995, 996 [6]; Cf. Aetna Casualty & Surety Co. v. Yeatts, C.A.4th (1941), 122 F.2d 350, 354 [8]. The Court submitted the issue of just compensation to the jury under clear instructions, in which the criteria for the award were clearly stated. As the Court now recalls, there were no objections interposed as to any jury instruction either given or refused. The parties themselves selected from the entire venire the particular jurors they wished to make this determination. After a careful voir dire examination of the persons thus agreed upon by the parties, the Court found these jurors qualified. The evaluations placed upon the property taken by two of the landowners and one of their expert witnesses all were in excess of the amount of compensation awarded by the jury. Thus, there is substantial evidence to support the verdict of the jury, which had the primary duty to fix the amount of just compensation for the taking of this valuable farm." } ]

[ { "docid": "1079262", "title": "", "text": "In such cases expert testimony is not admissible. See Burton v. Horn & Hardant Baking Co., 371 Pa. 60, 88 A.2d 873, 63 A.L.R.2d 731 (1952). To the extent that Miss Goldstein was permitted to testify at all, plaintiff received more than he was entitled to. It was when the witness’ testimony ventured into an area beyond her experience in the field of recreation that the court, in denying defendant’s motion to strike her testimony, observed: “I think that the jury will have to accept this testimony as largely speculative, because Miss Goldstein is not speaking to an area that she is at all familiar with, but with that limitation I will permit it, * * *.” This was well within the range of permissible comment on the evidence. Byrd v. Blue Ridge Rural Elec. Co-op, Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 reh. den., 357 U.S. 933, 78 S.Ct. 1366, 2 L.Ed.2d 1375 (1958); Norwood v. Great Am. Indem. Co., 146 F.2d 797 (3d Cir. 1944); Yeager v. J. R. Christ Co., 269 F.Supp. 186 (E.D.Pa.1967). ORDER And now, this 13th day of June, 1969, it is ordered that 1. Plaintiff’s Motion for Judgment N.O.Y. is marked withdrawn; and 2. Plaintiff’s Motion for .New Trial is denied. . A number of other photographs which the in evidence. father took at the same time were introduced" }, { "docid": "10461509", "title": "", "text": "for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States____” (emphasis added by the Court). When a new trial is granted as to part of the issues in an action, the portions of the original verdict and judgment as to the other issues stand and are merged into the judgment following the last jury verdict. Weymouth v. Colorado Interstate Gas Co., 34 F.R.D. 4, 6 (N.D.Tex.1963), affirmed, 367 F.2d 84 (5th Cir.1966). Further, an error at trial relating to one issue that does not affect the determination of other issues does not justify granting a new trial on any issue except the tainted one. Eximco, Inc. v. Trane Co., 737 F.2d 505, 513 (5th Cir.1984), rehearing denied and granted in part, 748 F.2d 287 (5th Cir.1984); Nisho-Twai Co., Ltd. v. Occidental Crude Sales, Inc., 729 F.2d 1530, 1538 (5th Cir.1984). Among the grounds for a new trial are that the verdict is against the weight of evidence, that the damages are excessive, or that for other reasons the trial was not fair. Montgomery Ward and Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 194, 85 L.Ed. 147 (1940). One of the grounds most commonly raised, as here, is that the verdict is against the weight of the evidence. Wright & Miller, Federal Practice and Procedure: Civil § 2805. The power of the federal court to grant a new trial on the ground that the verdict was against the weight of the evidence is clear. Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525, 540, 78 S.Ct. 893, 902, 2 L.Ed.2d 953 (1958); Montgomery Ward & Co. v. Duncan, supra, 311 U.S. at 251, 61 S.Ct. at 194. On a motion for a new trial— unlike a motion for a directed verdict or for judgment notwithstanding the verdict — the Court may set aside the verdict even though there may be evidence to support it. U.S. for Use of Weyerhaeuser Co. v. Bucon Construction Co., 430 F.2d 420, 423 (5th Cir.1970); Hampton v." }, { "docid": "743278", "title": "", "text": "the credibility of the witnesses for that of the jury. Such an action effects a denigration of the jury system and to the extent that new trials are granted the judge takes over, if he does not usurp, the prime function of the jury as the trier of the facts. It then becomes the duty of the appellate tribunal to exercise a closer degree of scrutiny and supervision than is the case where a new trial is granted because of some undesirable or pernicious influence obtruding into the trial. Such a close scrutiny is required in order to protect the litigants right to jury trial. There are many examples of district judges granting new trials in civil cases under the authority embodied in Rule 59, the exercise of which is not viewed in the same vein once the case reaches the appellate level. Some examples are Duncan v. Duncan, 377 F.2d 49 (6th Cir.), cert. denied, 389 U.S. 913, 88 S.Ct. 239, 19 L.Ed.2d 260 (1967); Judge William E. Miller dissenting in Fortenberry v. New York Life Insurance Company, 459 F.2d 114, 116 (6th Cir.), cert. denied, 409 U.S. 981, 93 S.Ct. 316, 34 L.Ed.2d 245 (1972), reh. denied, 410 U.S. 961, 93 S.Ct. 1414, 35 L.Ed.2d 697 (1973); Borras v. Sea-Lane Service, Inc., 586 F.2d 881 (1st Cir.1978); and Coffran v. Hitchcock Clinic, Inc., 683 F.2d 5 (1st Cir.), cert. denied, 459 U.S. 1087, 103 S.Ct. 571, 74 L.Ed.2d 933 (1982). The power of a United States district judge to grant a new trial on the ground that the verdict was against the weight of the evidence is undisputed. See Byrd v. Blue Ridge Rural Electric Co-op, Inc., 356 U.S. 525, 540, 78 S.Ct. 893, 902, 2 L.Ed.2d 953 (1958). In doing so a district judge should be careful not to confuse the standards here announced for granting a new trial with the standards for directing a verdict or granting a judgment notwithstanding the verdict. In granting a motion for a new trial, unlike granting a motion for a directed verdict or a judgment notwithstanding the verdict, the district" }, { "docid": "23433292", "title": "", "text": "the weight of the evidence, a district judge must compare the ■opposing proofs and weigh the evidence (Felton v. Spiro, 78 F. 576 (6th Cir. 1897) (Taft, J.), General American Life Ins. Co. v. Central Nat’l Bank, 136 F.2d 321 (6th Cir. 1943)), and “it is the duty of the judge to set aside the verdict and grant a new trial, if he is of the opinion that the verdict is against the clear weight of the evidence * * *.” Aetna Cas. & Surety Co. v. Yeatts, 122 F.2d 350, 352 (4th Cir. 1941), cited with approval in Turner v. United States, 229 F.2d 944, 946 (6th Cir.), cert. denied, 351 U.S. 970, 76 S.Ct. 1038, 100 L.Ed. 1489 (1956). The power of the trial judge to set aside a verdict as against the weight of the evidence and grant a new trial is thus a check or limitation on the jury’s power to render a final and binding verdict, to the end that a miscarriage of justice does not result. However, “[c]ourts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.” Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 412, 488 L.Ed. 520 (1944) ; Werthan Bag Corp. v. Agnew, 202 F.2d 119, 122 (6th Cir. 1953). Thus, while the district judge has a duty to intervene in appropriate cases, the jury’s verdict should be accepted if it is one which could reasonably have been reached. In applying these two broad principles defining the permissible limits of court action in granting a new trial on the weight of the evidence, the district judge must, as is generally stated, exercise his sound judicial discretion. See Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 85 L.Ed. 147 (1940); Devine v. Patteson, 242 F.2d 828 (6th Cir.), cert. denied, 355 U.S. 821, 78 S.Ct. 27, 2 L.Ed.2d 36 (1957), and cases cited infra. See" }, { "docid": "22751372", "title": "", "text": "place to work and a face mask and gloves to require submission of the case to the jury under the standard we hereafter promulgate in this opinion. I. FEDERAL RATHER THAN STATE TEST IS APPLICABLE It is well settled in this Circuit that in diversity cases federal courts apply a federal rather than a state test for the sufficiency of evidence to create a jury question. Reuter v. Eastern Air Lines, 5 Cir., 1955, 226 F.2d 448; Revlon, Inc. v. Buchanan, 5 Cir., 1959, 271 F.2d 795, 81 A.L.R.2d 222; Planters Manufacturing Co. v. Protection Mut. Ins. Co., 5 Cir., 1967, 380 F.2d 869; Helene Curtis Industries, Inc. v. Pruitt, 5 Cir., 1967, 385 F.2d 841. In Planters, supra, Judge Tuttle exhaustively discussed this issue and pointed out (380 F.2d at 870-871) that although the Supreme Court had not yet resolved the question in favor of the federal test, that Court had said in Byrd v. Blue Ridge Rural Electric Cooperative, 356 U.S. 525, 538, 78 S.Ct. 893, 901, 2 L.Ed.2d 953 (1958): “It cannot be gainsaid that there is a strong federal policy against allowing state rules to disrupt the judge-jury relationship in the federal courts.” See also Herron v. Southern Pac. Co., 283 U.S. 91, 51 S.Ct. 383, 75 L.Ed. 857 (1931); Simler v. Conner, 372 U.S. 221, 83 S.Ct. 609, 9 L.Ed.2d 691 (1963). Federal courts must be able to control the fact-finding processes by which the rights of litigants are determined in order to preserve “the essential character” of the federal judicial system. Of course, we do not contend that this control will not affect state-created substantive rights in some cases. Ultimately, however, the integrity of our fact-finding processes must outweigh considerations of uniformity. Herron v. Southern Pac. Co., 283 U.S. 91, 51 S.Ct. 383, 75 L.Ed. 857 (1931); Byrd v. Blue Ridge Rural Electric Cooperative, 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958); Note, State Trial Procedure and the Federal Courts: Evidence, Juries, and Directed Verdicts Under the Erie Doctrine, 66 Harv.L.Rev. 1516, 1525 (1953). Thus, we agree with the original opinion and" }, { "docid": "11147958", "title": "", "text": "of law or fact is presented.”). The standard for granting a new trial is not whether minor evidentiary errors were made but whether there was a clear miscarriage of justice. Nyman, 967 F.Supp. at 1569. The decision whether to grant a new trial falls within the discretion of the trial court. McNeal v. Hi-Lo Powered Scaffolding, Inc., 836 F.2d 637, 646 (D.C.Cir.1988). B. The Jury Verdict was Not Against the Weight of the Evidence Mr. Lee argues that the jury verdict, which found that Mr. Lee was not disabled within the meaning of the ADA, was against the weight of the evidence and thus necessitates a new trial. To determine whether Mr. Lee is correct, this Court must analyze the relevant elements of an ADA action and the evidence presented at trial while “assessing the credibility of the witnesses and the comparative strength of the facts put forth at trial.” Mejia v. Cook County, III., 650 F.3d 631, 633 (7th Cir.2011); Byrd v. Blue Ridge Elec. Coop., Inc., 356 U.S. 525, 540, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958) (“The trial judge in the federal system has powers denied the judges of many States to comment on the weight of evidence and credibility of witnesses ... ”). A new trial is appropriate if, after evaluating the evidence and its relative strength, the district court believes that the jury verdict is against the manifest weight of the evidence. To recover under the ADA, Mr. Lee must prove that he was discriminated against on the basis of his disability. 42 U.S.C. § 12112(a). Plaintiff has the burden of establishing that: 1) he has a “disability,” 2) he is “qualified” for the job, and 3) an adverse employment decision was made solely because of his disability. Wei-gert v. Georgetown Univ., 120 F.Supp.2d 1, 6 (D.D.C.2000). The ADA defines a disability as “a physical or mental impairment that substantially limits one or more of the major life activities of such an individual.” 42 U.S.C. § 12102(2). The parties do not dispute that the Plaintiff has an impairment. Plaintiff also alleges, and this Court accepts," }, { "docid": "7564547", "title": "", "text": "for new trial on damages only or in the alternative for a new trial on all issues. In July 1996, the district court granted McClain’s motion in part, vacating the wrongful death damage award and ordering a new trial on wrongful death damages only. This second trial occurred in August 1996. Prior to its start, McClain reasserted a motion in limine from the first trial. She moved to exclude any evidence that, after Charles McClain’s death, McClain cohabited with her deceased husband’s male cousin. The court granted the motion and excluded all such evidence. The jury awarded McClain $700,-000, and Owens-Corning moved for a new trial. The court denied the motion, and Owens-Coming now appeals to this Court. II. Analysis A. Grant of New Trial A federal court sitting in diversity applies federal standards to a motion for new trial. See Browning-Ferris Indus., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 278-79, 109 S.Ct. 2909, 2921-22, 106 L.Ed.2d 219 (1989). A district court may grant a new trial if it finds the verdict against the weight of the evidence. See Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 540, 78 S.Ct. 893, 902, 2 L.Ed.2d 953 (1958), overruled on other grounds, Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965); Scaggs v. Consolidated Rail Corp., 6 F.3d 1290, 1293 (7th Cir.1993). Because Owens-Coming’S liability is based on Illinois law, Illinois law governs the question of whether the evidence supports the award of damages. See Medcom Holding Co. v. Baxter Travenol Lab., Inc., 106 F.3d 1388, 1397 (7th Cir.1997). A district court, therefore, is required “to look to Illinois law for the substantive standard of what evidence would satisfy proof of damages.” Id.; see also Gasperini v. Center for Humanities, Inc., 518 U.S. 415, -, 116 S.Ct. 2211, 2225, 135 L.Ed.2d 659 (1996). We review the district court’s grant of a motion for a new trial for abuse of discretion. See Gasperini, at -, 116 S.Ct. at 2223; United States v. Kim, 111 F.3d 1351, 1362 (7th Cir.1997); Medcom, 106 F.3d at 1397. “Generally," }, { "docid": "10461510", "title": "", "text": "excessive, or that for other reasons the trial was not fair. Montgomery Ward and Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 194, 85 L.Ed. 147 (1940). One of the grounds most commonly raised, as here, is that the verdict is against the weight of the evidence. Wright & Miller, Federal Practice and Procedure: Civil § 2805. The power of the federal court to grant a new trial on the ground that the verdict was against the weight of the evidence is clear. Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525, 540, 78 S.Ct. 893, 902, 2 L.Ed.2d 953 (1958); Montgomery Ward & Co. v. Duncan, supra, 311 U.S. at 251, 61 S.Ct. at 194. On a motion for a new trial— unlike a motion for a directed verdict or for judgment notwithstanding the verdict — the Court may set aside the verdict even though there may be evidence to support it. U.S. for Use of Weyerhaeuser Co. v. Bucon Construction Co., 430 F.2d 420, 423 (5th Cir.1970); Hampton v. Magnolia Towing Co., 338 F.2d 303, 306 (5th Cir.1964). Further, the Court is free to weigh the evidence for itself, i.e. “the trial judge must evaluate all significant evidence, deciding in the exercise of his own best judgment whether the jury has so disregarded the clear weight of evidence that a new trial is necessary to prevent injustice”. Edgehouse v. New York, Chicago & St. Louis Railroad Co., 213 F.Supp. 339, 339-40 (W.D.Pa.1962). However, a new trial should not be granted on evidentiary grounds unless, at a minimum, the verdict is against the great, and not merely the greater, weight of the evidence. Conway v. Chemical Leaman Tank Lines, Inc., 610 F.2d 360, 362-63 (5th Cir.1980), affirmed in part, reversed in part, and remanded, 687 F.2d 108 (5th Cir.1982); Love v. Sessions, 568 F.2d 357, 361 (5th Cir.1978); Spurlin v. General Motors Corp., 528 F.2d 612, 620 (5th Cir.1976). For reasons cited above, and in accordance with the teachings of the Fifth Circuit, IT IS HEREBY ORDERED that a new trial be granted on the" }, { "docid": "19094921", "title": "", "text": "contrary inference that some unknown person caused the fire. Nothing in this opinion, of course, is meant to indicate a belief that the fire was actually caused by the Arms; rather the foregoing merely illustrates that a jury question was presented. According ly, the district court erred in directing a verdict for the Arms. The judgment of the district court is REVERSED and the case is REMANDED to the district court for a new trial. . Mrs. Arms testified briefly. She testified that she agreed with her husband’s testimony. . Although the rule stated in the text is well established in this circuit, we note that there is some disagreement among the other circuits on the effect of state law on the standard for directing a verdict in a federal court sitting in diversity. Compare Matador Drilling Co. v. Post, 662 F.2d 1190, 1196 (5th Cir.1981) and Boeing Co. v. Shipman, 411 F.2d 365, 368-70 (5th Cir.1969) (en banc) (holding that the federal standard for directed verdicts applies in diversity cases) with Kuziw v. Lake Eng'g Co., 586 F.2d 33, 35 (7th Cir.1978) and Illinois State Trust Co. v. Terminal R.R. Ass’n, 440 F.2d 497, 500 (7th Cir.), cert. denied, 404 U.S. 855, 92 S.Ct. 100, 30 L.Ed.2d 96 (1971), (holding that state law governs the standard for a directed verdict in a federal court sitting in diversity). Cf. Abernathy v. Superior Hardwoods, Inc., 704 F.2d 963, 970-71 (7th Cir. 1983) (noting inconsistent decisions within the Seventh Circuit). See generally Dick v. New York Life Ins. Co., 359 U.S. 437, 444-45, 79 S.Ct. 921, 925-26, 3 L.Ed.2d 935 (1959) (noting the split of authority among the circuits); Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 538, 78 S.Ct. 893, 901, 2 L.Ed.2d 953 (1958) (\"there is a strong federal policy against allowing state rules to disrupt the judge-jury relationship in the federal courts”). It is worth noting that this circuit follows federal, not Tennessee, law on the standard for granting a new trial in a diversity case. Tennessee courts allow the trial judge to sit as a" }, { "docid": "2222776", "title": "", "text": "Mejia suffered minor-to-moderate contusions, lacerations, and bruising to his face and torso. The jury found against Mejia, and Mejia moved for a new trial. As relevant here, Mejia argued that a new trial was warranted because the verdict was against the manifest weight of the evidence. The district court conceded that the weight of the evidence (but maybe not the manifest weight, as we shall see) swung against the County, but held that it could not set aside the verdict on weight-of-the-evidence grounds “unless the testimony is such that reasonable persons could not believe it, because it contradicts indisputable physical facts or laws.” Expressing the belief that it was bound by this language, the court denied Mejia’s motion. The Supreme Court has long recognized that a district court can grant a motion for a new trial if the verdict was against the weight of the evidence. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 433, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996); Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 540, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958); Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 85 L.Ed. 147 (1940). In passing on a motion for a new trial, the district court has the power to get a general sense of the weight of the evidence, assessing the credibility of the witnesses and the comparative strength of the facts put forth at trial. See, e.g., Byrd, 356 U.S. at 540, 78 S.Ct. 893 (“The trial judge in the federal system has powers denied the judges of many States to comment on the weight of evidence and credibility of witnesses.... ”); United States v. Washington, 184 F.3d 653, 658 (7th Cir.1999) (“In considering the weight of the evidence, the court must necessarily consider the credibility of the witnesses.”); Bob Willow Motors, Inc. v. Gen. Motors Corp., 872 F.2d 788, 798 (7th Cir.1989) (“In ruling on a motion for a new trial, the judge may consider the credibility of witnesses, the weight of the evidence, and anything else which justice requires.”). If, after" }, { "docid": "5310635", "title": "", "text": "WEICK, Circuit Judge. The only question in this appeal is whether the District Court erred in granting defendant’s motion for a directed verdict, made at the close of all of the evidence. The suit was against a plastic surgeon for damages for malpractice in his diagnosis, treatment and surgei’y of plaintiff’s jaw. Jurisdiction was based on diversity of citizenship. The substantive issues of this case are governed by Tennessee law. The procedural issues are controlled by Federal law. In the Federal Courts, factual issues are decided by the jury and not by the Court. Byrd v. Blue Ridge Rural Elec. Co-Op., Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958). In the consideration of a motion for a directed verdict made by the defendant at the close of all the evidence, the Court is required to view the evidence, as well as all inferences properly deducible therefrom, in the light most favorable to the plaintiff. Taylor v. Cirino, 321 F.2d 279 (6th Cir. 1963). The Supreme Court of Tennessee, in construing Art. VI § 9 of the Tennessee Constitution, held that it “was intended to preserve to the jury ‘the right to determine what facts are proved in a cause.’ Ivey v. Hodges, 23 Tenn. (4 Humph.) 154, 155.” Haskins v. Howard, 159 Tenn. 86, 97, 16 S.W.2d 20, 23 (1929). In Cantrell v. Railway Co., 90 Tenn. 638, 18 S.W. 271 (1891), it was held: “For the Court to direct the jury to return a verdict in favor of either party, where there is any conflict in the evidence, is an invasion of the province of the jury by the Court, for which the ease will be reversed.” (Italics ours) (Syl. 4) The plaintiff, Barbara Campbell, was a minor, who, with her husband, was attending East Tennessee State University at Johnson City, Tennessee. On September 20, 1967, while frolicking with her husband, she received an accidental blow on the left side of her face. Numbness developed for a short time. Six days later she awoke with pain in her left jaw. She consulted Dr. Burgin Dossett, Jr.," }, { "docid": "19094922", "title": "", "text": "Eng'g Co., 586 F.2d 33, 35 (7th Cir.1978) and Illinois State Trust Co. v. Terminal R.R. Ass’n, 440 F.2d 497, 500 (7th Cir.), cert. denied, 404 U.S. 855, 92 S.Ct. 100, 30 L.Ed.2d 96 (1971), (holding that state law governs the standard for a directed verdict in a federal court sitting in diversity). Cf. Abernathy v. Superior Hardwoods, Inc., 704 F.2d 963, 970-71 (7th Cir. 1983) (noting inconsistent decisions within the Seventh Circuit). See generally Dick v. New York Life Ins. Co., 359 U.S. 437, 444-45, 79 S.Ct. 921, 925-26, 3 L.Ed.2d 935 (1959) (noting the split of authority among the circuits); Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 538, 78 S.Ct. 893, 901, 2 L.Ed.2d 953 (1958) (\"there is a strong federal policy against allowing state rules to disrupt the judge-jury relationship in the federal courts”). It is worth noting that this circuit follows federal, not Tennessee, law on the standard for granting a new trial in a diversity case. Tennessee courts allow the trial judge to sit as a “thirteenth juror” when passing upon a motion for a new trial. Federal diversity courts sitting in Tennessee do not apply this standard, but instead apply the federal standard. See, e.g., Werthan Bag Corp. v. Agnew, 202 F.2d 119, 122 (6th Cir.1953); Sandlin v. Pearsall, 427 F.Supp. 494, 495 (E.D. Tenn.1976). . Neither Mr. Arms nor Mrs. Arms testified as to Mrs. Arms’ whereabouts at the time of the two fires. . The district judge clearly misconceived his role under Tennessee law. In granting the directed verdict, he stated that the Arms \"were home and wherever they lived 50 miles plus away,” thus crediting Mr. Arms’ testimony. This determination usurped the jury's fact-finding function. Similarly, the following remarks of the district judge reveal that his decision was based on his understanding of human nature: All the insurance company showed was Arms were in a tight financial position at the time. That doesn’t say they went out and burned the house down. People don't do that. They survive. They don’t have to go and burn houses down____" }, { "docid": "21858453", "title": "", "text": "Civil Procedure 59(a) provides that “[a] new trial may be granted to all or any of the parties and on all or part of the issues ... in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States.” Fed. R. Crv. P. 59(a). The Supreme Court has noted that “the authority of trial judges to grant new trials” pursuant to Rule 59(a) “is large.” Gasperini v. Ctr. for the Humanities, Inc., 518 U.S. 415, 433, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996); see also id. (“ ‘The trial judge in the federal system,’ we have reaffirmed, ‘has ... discretion to grant a new trial if the verdict appears to [the judge] to be against the weight of the evidence.’ ” (quoting Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 540, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958))). We review a decision granting a motion for a new trial for abuse of discretion. Holmes v. City of Massillon, 78 F.3d 1041, 1045 (6th Cir.), cert. denied, 519 U.S. 935, 117 S.Ct. 312, 136 L.Ed.2d 228 (1996). Under this standard, we will reverse a decision granting a new trial when we have 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.’ ” Id. at 1045 (quotation omitted). As we have previously noted, [t]he scope of review of a damage award is extremely narrow. A trial court may not grant a new trial on the ground of insufficient damages unless the jury verdict is one that could not reasonably have been reached. The remedy of a new trial for inadequate damages is appropriate only where the evidence indicates that the jury awarded damages in an amount substantially less than unquestionably proved by the plaintiffs uncontradicted and undisputed evidence. Thus, if the verdict is supported by some competent, credible evidence, a trial court will be deemed not" }, { "docid": "18359595", "title": "", "text": "be substantially affected by whether the issue of immunity is decided by a judge or a jury. Therefore, were ‘outcome’ the only consideration, a strong case might appear for saying that the federal court should follow the state practice. “But there are affirmative countervailing considerations at work here. The federal system is an independent system for administering justice to litigants who properly invoke its jurisdiction. An essential characteristic of that system is the manner in which, in civil common-law actions, it distributes trial functions between judge and jury and, under the influence — if not the command — of the Seventh Amendment, assigns the decisions of disputed questions of fact to the jury. Jacob v. [City of] New York, 315 U.S. 752 [62 S.Ct. 854, 86 L.Ed. 1166], The policy of uniform enforcement of state-created rights and obligations, see, e. g., Guaranty Trust Co. [of New York] v. York (US), supra, cannot in every case exact compliance with a state rule — not bound up with rights and obligations — which disrupts the federal system of allocating functions between judge and jury. Herron v. Southern Pacific Co., 283 U.S. 91 [51 ■ S.Ct. 383, 75 L.Ed. 857], Thus the inquiry here is whether the federal policy favoring jury decisions of disputed fact questions should yield to the state rule in the interest of furthering the objective that the litigation should not come out one way in the federal court and another way in the state court.” 78 S.Ct. at 900-901, 2 L.Ed.2d at 962-963. Byrd v. Blue Ridge Rural Electric Cooperative, 1958, 356 U.S. 525, 536-538, 78 S.Ct. 893, 900-901, 2 L.Ed.2d 953, 962-963, reh. den. 357 U.S. 933, 78 S.Ct. 1366, 2 L.Ed.2d 1375 (1958). In Byrd, the Supreme Court held that Erie did not prevent the issue of whether Byrd was covered by workmen’s compensation, which would be tried to a judge in a state trial, from being tried to a jury in a federal diversity case. The Court continued: “It cannot be gainsaid that there is a strong federal policy against allowing state rules to disrupt the" }, { "docid": "22476139", "title": "", "text": "see Byrd v. Blue Ridge Rural Electric Coop., Inc., 356 U.S. 525, 540, 78 S.Ct. 893, 902, 2 L.Ed.2d 953 (1958); (2) it concludes that it may not weigh the evidence, see Moist Cold Refrigerator Co., 249 F.2d at 256; (3) it weighs the evidence explicitly against the wrong standard, i.e., substantial evidence or preponderance of the evidence, see id.; or (4) it concludes the verdict is against the clear weight of the evidence but refuses to grant a new trial, see Fenner v. Dependable Trucking Co., 716 F.2d 598, 602 (9th Cir.1983) (rather than grant a new trial, judge tried to force parties to accept a remittitur). As we cannot weigh the evidence for ourselves, we will reverse a denial of a new trial if we find one of these four errors or if the record contains no evidence in support of the verdict. Farley Transp., 786 F.2d at 1347. The bank argues that Judge Rymer did not weigh the evidence for herself, especially the credibility of the construction company’s witnesses, when she ruled on the motion for a new trial. RBOC mischaracterizes the judge’s consideration of its motion: No errors of law or in the conduct, of the trial are claimed. Thus what defendant in effect asks the Court to do, is sit as the thirteenth juror and reach a different result. Had I been sitting on the jury, I might have; at the same time, having sat through the trial where the main issue was, was there a contract— and where testimony on that issue was conflicting and the credibility of all those who were percipient was on the line and before the jury, I believe it inappropriate to second guess the trier of fact, at least where I cannot say with assurance (as I cannot in this case) that they could not reasonably have found Landes, Schein-berg and Glikbarg more credible than Neapole or plaintiffs theory more compelling than defendant’s. Order of Dec. 19, 1985 at 8 (emphasis added) (citation omitted). The judge concluded that it was not unreasonable for the jury to believe LCCO’s witnesses" }, { "docid": "6807492", "title": "", "text": "the most reasonable account of the matter in dispute.” It is plaintiff’s position that repeated use, in the above and similar instructions, of the words “satisfy”, “convince”, “convincing”, and “clear preponderance”, constituted prejudicial error. In support of this position, plaintiff cites a number of Illinois cases on the theory that in diversity cases, such as this one, the law governing burden of proof is that of the state of Illinois, the state in which the Court was sitting. Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. The procedural law is the law of the forum. The forum here is a federal district court, not a court of the state of Illinois. Although a state-created right may be enforced in a federal court because of diversity of citizenship, the federal court will proceed by its own rules of procedure, acquired from the federal government, and, therefore, not necessarily identical with those of the courts in the state in which the federal court is sitting. Byrd v. Blue Ridge Rural Elec. Co-op., 1958, 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953, rehearing denied 357 U. S. 933, 78 S.Ct. 1366, 2 L.Ed.2d 1375. The District Court’s charge to the jury must be considered as a whole to determine whether prejudicial error arose out of the instructions. Affleck v. Chicago & N. W. Ry. Co., 7 Cir., 1958, 253 F.2d 249, 251, 68 A.L.R.2d 982. From a reading of the instructions as a whole, we see no support for plaintiff’s conclusion that the jury was misled as to the burden of proof to be sustained or as to the meaning of the term “preponderance of the evidence”. The jury must be satisfied or convinced that the preponderance of the evidence supports an affirmative answer before the jury may answer any question “yes”. Although as a general rule it is well to avoid such terms in civil cases, the use of the words to which plaintiff objects did not, in our opinion, constitute prejudicial error in the context of the whole charge. Garrett v. E. I." }, { "docid": "7012285", "title": "", "text": "437, 79 S.Ct. 921, 3 L.Ed. 2d 935.” The scope of the Supreme Court’s view on protection of jury trial in diversity cases is indicated by its recent decisions sustaining the sufficiency of evidence to support jury verdicts in cases in which federal courts had set them aside. In Byrd v. Blue Ridge Rural Elec. Coop., 1958, 356 U.S. 525, 536-539, 78 S.Ct. 893, 901, 2 L.Ed.2d 953, 962-963 the Court, while reserving decision on the constitutional law question of the extent to which the Seventh Amendment protects the right of jury trial in diversity cases tried in federal courts, spoke as follows : “An essential characteristic of [the federal system] is the manner in which, in civil common-law actions, it distributes trial functions between judge and jury and, under the influence — if not the command— of the Seventh Amendment, assigns the decisions of disputed questions of fact to the jury.” II. This Court also has focused on the problem facing a federal court in a diversity case applying decisions of the state courts of Louisiana where the common law jury does not obtain and Louisiana courts review the facts as well as the law in all civil cases. “Federal courts are forbidden by the Seventh Amendment to re-examine any fact tried by a jury otherwise than according to the rules of the common law, while Louisiana state courts can review the facts in all civil cases. As a consequence of that situation, in civil jury cases federal courts evaluating decisions of Louisiana state courts as precedents have the difficult task of separating the decisions of the Louisiana courts on the law from the review of the facts.” Wright v. Paramount-Richards Theatres, 5 Cir., 1952, 198 F.2d 303, 306. See also Gillen v. Phoenix Indemnity Co., 5 Cir., 1952, 198 F.2d 147. Here, I fear, the Court has failed to make such a distinction in the Louisiana decisions cited. III. Since the District Court instructed a verdict for defendant, the evidence, of course, must be considered in its most favorable light to the plaintiff with every fair and reasonable" }, { "docid": "4067193", "title": "", "text": "matter of law. International Glass Co. v. United States, 408 F.2d 395, 403 (Ct.Cl.1969) (per curiam). Dr. Erb did not abandon his invention by publication. Inventors may reap their public reward for innovation as they see fit, either by publication or by seeking exclusive legal rights. Nonetheless, because the jury instructions mentioned abandonment in its recitation of priority rules, the jury may well have seized this incorrect ar gument (bolstered by Sony’s inability to respond) to deny Dr. Erb’s work its proper-prior art status. The court also notes that the parties offered extensive evidence at trial on the same surface limitation in claim 1 of the ’674 patent, including TEMs and SEMs. However, in the light of the court’s claim construction on this limitation and the evidence offered by Loral during trial, the court finds substantial evidence supports the jury’s verdict on this limitation. Sony has moved for a new trial in the alternative. Fed.R.CivJ?. 59 gives this court authority to grant new trials on all or part of the issues tried to a jury “for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States.” Under this rule, a court may grant a new trial where the verdict is against the great weight of the evidence. Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 540, 78 S.Ct. 893, 902, 2 L.Ed.2d 953 (1958). Even where substantial evidence might support a jury’s verdict, a court may grant a new trial. Litton, 87 F.3d at 1576; Song v. Ives Labs., Inc., 957 F.2d 1041, 1047 (2d Cir.1992); Dyer v. MacDougatt, 201 F.2d 265, 272 (2d Cir.1952) (Hand, J.). As the United States Court of Appeals for the Second Circuit has expressly recognized, Rule 59 authorizes this court to sit as the thirteenth juror in deciding a motion for a new trial. Dyer, 201 F.2d at 272. In other words, this court may weigh the evidence and need not view it in the light most favorable to the verdict winner. Song, 957 F.2d at 1047. Because" }, { "docid": "743279", "title": "", "text": "York Life Insurance Company, 459 F.2d 114, 116 (6th Cir.), cert. denied, 409 U.S. 981, 93 S.Ct. 316, 34 L.Ed.2d 245 (1972), reh. denied, 410 U.S. 961, 93 S.Ct. 1414, 35 L.Ed.2d 697 (1973); Borras v. Sea-Lane Service, Inc., 586 F.2d 881 (1st Cir.1978); and Coffran v. Hitchcock Clinic, Inc., 683 F.2d 5 (1st Cir.), cert. denied, 459 U.S. 1087, 103 S.Ct. 571, 74 L.Ed.2d 933 (1982). The power of a United States district judge to grant a new trial on the ground that the verdict was against the weight of the evidence is undisputed. See Byrd v. Blue Ridge Rural Electric Co-op, Inc., 356 U.S. 525, 540, 78 S.Ct. 893, 902, 2 L.Ed.2d 953 (1958). In doing so a district judge should be careful not to confuse the standards here announced for granting a new trial with the standards for directing a verdict or granting a judgment notwithstanding the verdict. In granting a motion for a new trial, unlike granting a motion for a directed verdict or a judgment notwithstanding the verdict, the district judge may set aside the verdict even though there is substantial evidence to support it. See Hampton v. Magnolia Towing Co., 338 F.2d 303 (5th Cir.1964). See also Isley v. Motown Record Corp., 69 F.R.D. 12 (S.D.N.Y.1975). The authorities are also to the point that a district judge in granting a motion for a new trial is not required to take that view of the evidence most favorable to the verdict. See Bates v. Hensley, 414 F.2d 1006, 1011 (8th Cir.1969). The authorities on this subject are collected and summarized in Wright & Miller, Federal Practice and Procedure, § 2806: Necessarily all such formulations are couched in broad and general terms that furnish no unerring litmus for a particular case. On the one hand, the trial judge does not sit to approve miscarriages of justice. His power to set aside the verdict is supported by clear precedent at common law and, far from being a denigration or a usurpation of jury trial, has long been regarded as an integral part of trial by jury as" }, { "docid": "21858452", "title": "", "text": "the district judge provided some clarification and adopted a portion of Bell’s description of the “context” of the comments, but did not explicitly repudiate any of the statements attributed to him by Blatter’s attorneys. J.A. at 148-49 (Order Denying Recusal Motion). The district judge also noted that “[t]he undersigned’s comments at the status conference were not intended to be taken literally, as Bell’s counsel recognizes, but rather were an attempt, perhaps a bit heavy-handed, to resolve the case short of a third trial. Rhetorical promiscuity is not the same as bias.” J.A. at 150 (Order Denying Recusal Motion). The case again went to jury trial (“Trial No. 3”), and this trial resulted in a verdict of $6,000 in compensatory damages and $28,000 in punitive damages against Blatter, who then filed this appeal. II. ANALYSIS A. Jurisdiction As Bell sued under 42 U.S.C. § 1983, the district court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. B. Motion for New Trial Federal Rule of Civil Procedure 59(a) provides that “[a] new trial may be granted to all or any of the parties and on all or part of the issues ... in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States.” Fed. R. Crv. P. 59(a). The Supreme Court has noted that “the authority of trial judges to grant new trials” pursuant to Rule 59(a) “is large.” Gasperini v. Ctr. for the Humanities, Inc., 518 U.S. 415, 433, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996); see also id. (“ ‘The trial judge in the federal system,’ we have reaffirmed, ‘has ... discretion to grant a new trial if the verdict appears to [the judge] to be against the weight of the evidence.’ ” (quoting Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 540, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958))). We review a decision granting a motion for a new" } ]

[ { "docid": "23146533", "title": "", "text": "Briddell, Inc. v. Alglobe Trading Corp., supra, 194 F.2d at page 421. Tepco’s use of the designs in question cannot be enjoined even though it be assumed that Wallace can establish secondary meaning for them. Imitation of the physical details and designs of a competitor’s product may be actionable, if the particular features imitated are “non-functional” and have acquired a secondary meaning. Crescent Tool Co. v. Kilborn & Bishop Co., 2 Cir., 1917, 247 F. 299. But, where the features are “functional” there is normally no right to relief. “Functional” in this sense might be said to connote other than a trade-mark purpose. If the particular feature is an important ingredient in the commercial success of the product, the interest in free competition permits its imitation in the absence of a patent or copyright. On the other hand, where the feature or, more aptly, design, is a mere arbitrary embellishment, a form of dress for the goods primarily adopted for purposes of identification and individuality and, hence, unrelated to basic consumer demands in connection with the product, imitation may be forbidden where the requisite showing of secondary meaning is made. Under such circumstances, since effective competition may be undertaken without imitation, the law grants protection. These criteria require the classification of the designs in question here as functional. Affidavits introduced by Wallace repeat over and over again that one of the essential selling features of hotel china, if, indeed, not the primary, is the design. The attractiveness and eye-appeal of the design sells the china. Moreover, from the standpoint of the purchaser china satisfies a demand for the aesthetic as well as for the utilitarian, and the design on china is, at least in part, the response to such demand. The granting of relief in this type of situation would render Wallace immune from the most direct and effective competition with regard to these lines of china. It seems clear that these designs are not merely indicia of source, so that one who copies them can have no real purpose other than to trade on his competitor’s reputation. On the" } ]

[ { "docid": "15435522", "title": "", "text": "were pressing it further than that body desired. The Eighth Circuit took essentially this position in Truck Equipment Service Co. v. Fruehauf Corp., 536 F.2d 1210, 1214-15, cert. denied, 429 U.S. 861, 97 S.Ct. 164, 50 L.Ed.2d 139 (1976). The court there sustained a claim under § 43(a) for copying the exterior design of a hopper grain trailer which was found to be nonfunctional and to have acquired a secondary meaning. While we previously left this question open in Bose Corp. v. Linear Design Labs, Inc., 467 F.2d 304, 309-10 (1972), we are now prepared to agree with the Eighth Circuit. Assuming that the law developed by federal courts under § 43(a) prior to Sears and Compco continues to govern and that the precise strictures there addressed to the states may not be applicable to a claim under that section, this still leaves the question whether Ives showed a probability of success or a fair ground for litigation and a balance of hardships tipping decidedly in its favor. A good statement of the law under § 43(a) is in Pagliero v. Wallace China Co., 198 F.2d 339, 343 (9 Cir. 1952), quoted in Bliss v. Gotham Industries, Inc., 316 F.2d 848, 855 (9 Cir. 1963), on which the Eighth Circuit relied in the Truck Equipment case: Imitation of the physical details and designs of a competitor’s product may be actionable, if the particular features imi tated are ‘non-functional’ and have acquired a secondary meaning. Crescent Tool Co. v. Kilborn & Bishop Co., 2 Cir., 1917, 247 F. 299. But, where the features are ‘functional’ there is normally no right to relief. ‘Functional’ in this sense might be said to connote other than a trademark purpose. If the particular feature is an important ingredient in the commercial success of the product, the interest in free competition permits its imitation in the absence of a patent or copyright. On the other hand, where the feature or, more aptly, design, is a mere arbitrary embellishment, a form of dress for the goods primarily adopted for purposes of identification and individuality and, hence, unrelated" }, { "docid": "7450812", "title": "", "text": "v. Walt Disney Productions, Inc., 263 F.2d 229, 231-32 (9th Cir.1958). Even if we assume the district court was clearly erroneous in not presuming that Eneo suffered harm as a result of Clamp’s delay, the district court’s findings on the other factors weigh against a determination of laches. The district court’s implicit conclusion that laches should not apply was not an abuse of discretion. B. Validity of the Clamp Configuration Trademark The physical details and design of a product may be protected under the trademark laws only if they are nonfunctional and have acquired a secondary meaning. Vuitton Et Fils S.A. v. J. Young Enter prises, 644 F.2d 769, 772 (9th Cir.1981). The burden of proving nonfunctionality is on Clamp. See Rachel v. Banana Republic, Inc., 831 F.2d 1503, 1506 (9th Cir.1987). Evidence of deliberate copying, present in this case, supports a determination of secondary meaning but does not in itself shift the burden of proving secondary meaning from Clamp to Enco. See Fuddruckers, 826 F.2d at 844. 1. Functionality The requirement of nonfunctionality is based “on the judicial theory that there exists a fundamental right to compete through imitation of a competitor’s product, which right can only be temporarily denied by the patent or copyright laws.” In re Morton-Norwich Products, Inc., 671 F.2d 1332, 1336 (C.C.P.A.1982) (emphasis in original). If the utilitarian aspects of the product are its essence, only patent law protects its configuration from use by competitors. See Morton-Norwich, 671 F.2d at 1338-40; cf. Vuitton, 644 F.2d at 776-77. See generally Annotation, Application of Functionality Doctrine Under § 43(a) of Lanham Act, 78 A.L.R.Fed. 712, 736-49 (1986). “Functional features of a product are features ‘which constitute the actual benefit that the consumer wishes to purchase, as distinguished from an assurance that a particular entity made, sponsored, or endorsed a product.’ ” Vuitton, 644 F.2d at 774 (quoting Int’l Order of Job’s Daughters v. Lindeburg & Co., 633 F.2d 912, 917 (9th Cir.1980), cert. denied, 452 U.S. 941, 101 S.Ct. 3086, 69 L.Ed.2d 956 (1981)). For an overall product configuration to be recognized as a trademark, the entire" }, { "docid": "15615165", "title": "", "text": "there is a likelihood that the consuming public will confuse Champion’s DISCATCHER PRO with DGA’s product. See International Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819, 823 (9th Cir.1993) (stating the elements of a trademark claim). The district court held that DGA had failed to present a triable issue of fact as to the first element. DGA argues that the trial court erred, because DGA presented sufficient evidence to create a question of fact on the issue of functionality. See Rachel v. Banana Republic, Inc., 831 F.2d 1503, 1506 (9th Cir.1987) (holding that functionality is a question of fact, which the plaintiff bears the burden of proving). Trademark or trade dress protection extends only to product features that are nonfunctional. A product feature is functional “if it is essential to the use or purpose of the article or if it affects the cost or quality of the article, that is, if exclusive use of the feature would put competitors at a significant non-reputation-related disadvantage.” Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 165, 115 S.Ct. 1300, 131 L.Ed.2d 248 (1995) (internal quotation marks and citation omitted). This court has observed that “[f]unc-tional features of a product are features which constitute the actual benefit that the consumer wishes to purchase, as distinguished from an assurance that a particular entity made, sponsored, or endorsed a product.” Rachel, 831 F.2d at 1506 (internal quotation marks and citation omitted). The Supreme Court in Qualitex articulated the rationale underlying the requirement of nonfunctionality, which bears particular relevance to this case: The functionality doctrine prevents trademark law, which seeks to promote competition by protecting a firm’s reputation, from instead inhibiting legitimate competition by allowing a producer to control a useful product feature. It is the province of patent law, not trademark law, to encourage invention by granting inventors a monopoly over new product designs or functions for a limited time, 35 U.S.C. §§ 154, 173, after which competitors are free to use the innovation. If a product’s functional features could be used as trademarks, however, a monopoly over such features could be obtained without" }, { "docid": "13417097", "title": "", "text": "trade dress, the marks depicted in the certificates do not have the same scope as the trade dress claimed in this litigation. . In response to Star Asia's motion, Great Neck submitted both excerpts of Mr. Miskin’s initial report and a full, unsigned copy of his rebuttal report. Star Asia has objected to these filings in light of their deficient form. Reply at 6 (docket no. 125). The Court, however, declines to strike them. . Star Asia contends, and Great Neck does not dispute, that a conclusion of functionality as to Great Neck’s alleged trade dress also defeats Great Neck’s other Lanham Act claims for false designation of origin, unfair competition, unprivileged imitation, and passing off. The Court agrees. The Lanham Act offers federal protection against two types of unfair competition: infringement of registered trademarks, 15 U.S.C. § 1114, and false designation of the origin of goods, 15 U.S.C. § 1125(a). Int'l Order of Job’s Daughters v. Lindeburg & Co., 633 F.2d 912, 915 (9th Cir.1980). The latter tort, which is alleged in this case, may be asserted in a variety of ways, for example, infringement of an unregistered mark (consisting in this instance of trade dress), passing off, or false designation of origin, but a common element that must be proved by the plaintiff is non-functionality; \"trademark law is concerned only with identification of the maker, sponsor, or endorser of the product\" and it \"does not prevent a person from copying so called 'functional' features of a product.\" Id. at 917. Thus, Great Neck's alternative theories of recovery do not survive the Court’s ruling as to the functionality of Great Neck’s alleged trade dress." }, { "docid": "23543258", "title": "", "text": "v. Banana Republic, Inc., 831 F.2d 1503, 1506 (9th Cir.1987). In the case before us, we conclude that the district court’s finding of nonfunctionality was based on its use of an incorrect legal standard. Viewed in the correct light, the record before us supports only one conclusion: The TMSS initialization code is a functional feature of a Genesis-compatible game and Accolade may not be barred from using it. “Functional features of a product are features ‘which constitute the actual benefit that the consumer wishes to purchase, as distinguished from an assurance that a particular entity made, sponsored, or endorsed a product.’ ” Vuitton et Fils S.A. v. J. Young Enterprises, Inc., 644 F.2d 769, 774 (9th Cir.1981) (quoting International Order of Job’s Daughters v. Lindeburg & Co., 633 F.2d 912, 917 (9th Cir.1980), cert. denied, 452 U.S. 941, 101 S.Ct. 3086, 69 L.Ed.2d 956 (1981)). A product feature thus is functional “if it is essential to the use or purpose of the article or if it affects the cost or quality of the article.” Inwood Laboratories, 456 U.S. at 850 n. 10, 102 S.Ct. at 2187 n. 10. The Lanham Act does not protect essentially functional or utilitarian product features because such protection would constitute a grant of a perpetual monopoly over features that could not be patented. Keene Corp. v. Paraflex Industries, Inc., 653 F.2d 822, 824 (3d Cir.1981). Even when the allegedly functional product feature is a trademark, the trademark owner may not enjoy a monopoly over the functional use of the mark. Job’s Daughters, 633 F.2d at 918-19. In determining whether a product feature is functional, a court may consider a number of factors, including — but not limited to — “the availability of alternative designs; and whether a particular design results from a comparatively simple or cheap method of manufacture.” Clamp Mfg. Co. v. Eneo Mfg. Co., Inc., 870 F.2d 512, 516 (9th Cir.), cert. denied, 493 U.S. 872, 110 S.Ct. 202, 107 L.Ed.2d 155 (1989). The availability of alternative methods of manufacture must be more than merely theoretical or speculative, however. The court must find" }, { "docid": "7450813", "title": "", "text": "based “on the judicial theory that there exists a fundamental right to compete through imitation of a competitor’s product, which right can only be temporarily denied by the patent or copyright laws.” In re Morton-Norwich Products, Inc., 671 F.2d 1332, 1336 (C.C.P.A.1982) (emphasis in original). If the utilitarian aspects of the product are its essence, only patent law protects its configuration from use by competitors. See Morton-Norwich, 671 F.2d at 1338-40; cf. Vuitton, 644 F.2d at 776-77. See generally Annotation, Application of Functionality Doctrine Under § 43(a) of Lanham Act, 78 A.L.R.Fed. 712, 736-49 (1986). “Functional features of a product are features ‘which constitute the actual benefit that the consumer wishes to purchase, as distinguished from an assurance that a particular entity made, sponsored, or endorsed a product.’ ” Vuitton, 644 F.2d at 774 (quoting Int’l Order of Job’s Daughters v. Lindeburg & Co., 633 F.2d 912, 917 (9th Cir.1980), cert. denied, 452 U.S. 941, 101 S.Ct. 3086, 69 L.Ed.2d 956 (1981)). For an overall product configuration to be recognized as a trademark, the entire design must be nonfunctional. Textron, Inc. v. U.S. Int’l Trade Comm’n, 753 F.2d 1019, 1025 (Fed.Cir.1985). “[T]he right to copy better working designs would, in due course, be stripped of all meaning if overall functional designs were accorded trademark protection because they included a few arbitrary and nonfunctional features.” Id. To assist in analyzing functionality, several factors may be examined: the existence of an expired utility patent disclosing the utilitarian advantage of the design sought to be protected as a trademark; the extent of advertising touting the utilitarian advantages of the design; the availability of alternative designs; and whether a particular design results from a comparatively simple or cheap method of manufacture. Morton-Norwich, 671 F.2d at 1340-41. The district court found that Kant-twist clamps were distinctive, primarily nonfunctional, and arbitrary, and that commercially feasible alternative configurations exist. Clamp presented evidence of alternative designs and of the arbitrary nature of the clamp arm’s shape, including the fact that Clamp made minor design variations in response to the competition from Eneo. It also introduced expert testimony concerning" }, { "docid": "8853456", "title": "", "text": "determination, including (1) the strength of the plaintiffs mark; (2) the extent to which the goods are related; (3) the similarity of the marks; (4) evidence of actual confusion; (5) the degree of identity of marketing channels for the goods; (6) the likely degree of purchaser care; (7) the defendant’s intent in selecting the mark; and (8) the likelihood of expansion of the product lines. Toho Co. v. Sears, Roebuck & Co., 645 F.2d 788, 790 (9th Cir.1981). In considering whether the buying public is likely to be confused, the factfinder cannot look merely at the point of sale; a mark that is likely to confuse prospective purchasers observing it after the point of sale constitutes no less an infringement. Levi Strauss & Co. v. Blue Bell, Inc., 632 F.2d 817, 822 (9th Cir.1980). Functional features, on the other hand, are unprotected by trademark law. International Order of Job’s Daughters v. Lindeburg & Co., 633 F.2d 912, 917 (9th Cir.1980), cert. denied, 452 U.S. 941, 101 S.Ct. 3086, 69 L.Ed.2d 956 (1981). A feature is functional if it embodies the benefit the consumer wishes to purchase, as opposed to an assurance that the product is manufactured or sponsored by a particular entity. Rachel v. Banana Republic, Inc., 831 F.2d 1503, 1506 (9th Cir.1987). The purpose of the distinction was ably expressed by our own Judge Orr in one of the earliest cases to apply it in the context of the Lanham Act: If the particular feature is an important ingredient in the commercial success of the product, the interest in free competition permits its imitation in the absence of a patent or copyright. On the other hand, where the feature or, more aptly, design, is a mere arbitrary embellishment, a form of dress for the goods primarily adopted for purposes of identification and individuality and, hence, unrelated to basic consumer demands in connection with the product, imitation may be forbidden where the requisite showing of secondary meaning is made. Under such circumstances, since effective competition may be undertaken without imitation, the law grants protection. Pagliero v. Wallace China Co., 198" }, { "docid": "5380330", "title": "", "text": "said to connote other than a trademark purpose. If the particular feature is an important ingredient in the commercial success of the product, the interest in free competition permits its imitation in the absence of a patent or copyright. On the other hand, where the feature or, more aptly, design, is a mere arbitrary embellishment, a form of dress for the goods primarily adopted for purposes of identification and individuality and, hence, unrelated to basic consumer demands in connection with the product, imitation may be forbidden . . . . Under such circumstances, since effective competition may be undertaken without imitation, the law grants protection. This definition and reasoning have been cited with approval in subsequent Ninth Circuit decisions as well as in decisions of other courts. E.g., Bliss v. Gotham Industries, Inc., supra, 316 F.2d at 855; Truck Equipment Service Co. v. Fruehauf Corp., supra, 536 F.2d at 1217; PPS, Inc., v. Jewelry Sales Representatives, Inc., 392 F.Supp. 375, 384 (S.D.N.Y.1975). Thus, a feature of an article is functional, not necessarily because it is utilitarian and absolutely required for the use of the article, but rather because it is “an important ingredient in the commercial success of the product.” Pagliero v. Wallace China Co., supra, 198 F.2d at 341. A feature which gives the consumer a substantial reason for purchasing the product, as opposed merely to distinguishing it from other products, is functional. By contrast, if a feature serves primarily to identify a product and does not contribute substantially to the product’s value, as determined by consumers, it is non-functional and may not be copied. See PPS, Inc. v. Jewelry Sales Representatives, Inc., supra, 392 F.Supp. at 384; Developments in the Law: Trade-Marks and Unfair Competition, 68 Harv.L.Rev. 814, 856 (1955). This distinction is based upon the interest in promoting free competition, which is a central objective of trademark infringement law. See HMH Publishing Co. v. Brincat, supra, 504 F.2d at 716. Free competition would be impeded if a manufacturer could gain a perpetual monopoly on the reproduction of a feature which contributes directly to the sale of the" }, { "docid": "20570727", "title": "", "text": "and thus aid the performance of an object for which the goods are intended. Restatement of Torts § 742, comment a (1938) (see Restatement 3d of Unfair Competition, § 17 (1995)). Two examples of products with aesthetic functional features were offered, with very little comment — a heart-shaped candy box and a distinctive printing typeface. Nearly fifteen years later, the doctrine blossomed in Pagliero v. Wallace China Co., an action by Wallace China, a manufacturer of vitrified china, to prohibit a competitor from using a series of decorative patterns and a corresponding list of names. See 198 F.2d 339 (9th Cir.1952). Neither the patterns nor the names were covered by registered trademarks or patents; instead, Wallace claimed secondary meaning, primarily that customers associated the patterns with Wallace, due to extensive advertising and a reputation for quality. Id. at 342. In ruling on Wallace’s claim, we loosely echoed the 1938 Restatement in articulating the line between aesthetic appeal and functionality: [WJhere the features are “functional” there is normally no right to relief. “Functional” in this sense might be said to connote other than a trade-mark purpose. If the particular feature is an important ingredient in the commercial success of the product, the interest in free competition permits its imitation in the absence of a patent or copyright. On the other hand, where the feature or, more aptly, design, is a mere arbitrary embellishment, a form of dress for the goods primarily adopted for purposes of identification and individuality and hence, unrelated to basic consumer demands in connection with the product, imitation may be forbidden where the requisite showing of secondary meaning is made. Under such circumstances, since effective competition may be undertaken without imitation, the law grants protection. Id. at 343 (internal citations omitted). Applying that test, the china patterns were deemed “functional” because the “attractiveness and eye-appeal” of the design is the primary benefit that consumers seek in purchasing china. Id. at 343-44. Thus, Wallace’s designs were not “mere arbitrary embellishment,” but were at the heart of basic consumer demand for the product and could not be protected as trademarks." }, { "docid": "15435523", "title": "", "text": "§ 43(a) is in Pagliero v. Wallace China Co., 198 F.2d 339, 343 (9 Cir. 1952), quoted in Bliss v. Gotham Industries, Inc., 316 F.2d 848, 855 (9 Cir. 1963), on which the Eighth Circuit relied in the Truck Equipment case: Imitation of the physical details and designs of a competitor’s product may be actionable, if the particular features imi tated are ‘non-functional’ and have acquired a secondary meaning. Crescent Tool Co. v. Kilborn & Bishop Co., 2 Cir., 1917, 247 F. 299. But, where the features are ‘functional’ there is normally no right to relief. ‘Functional’ in this sense might be said to connote other than a trademark purpose. If the particular feature is an important ingredient in the commercial success of the product, the interest in free competition permits its imitation in the absence of a patent or copyright. On the other hand, where the feature or, more aptly, design, is a mere arbitrary embellishment, a form of dress for the goods primarily adopted for purposes of identification and individuality and, hence, unrelated to basic consumer demands in connection with the product, imitation may be forbidden where the requisite showing of secondary meaning is made. Under such circumstances, since effective competition may be undertaken without imitation, the law grants protection. One would not initially suppose the color of a capsule to be functional. Unlike the chocolate in the Warner case, supra, the blue and blue-and-red coatings of Ives’ capsules do not contribute to their efficacy; any other colors would do as well. The argument that, like functional elements, color ought to be automatically denied protection because of the risk of creating monopolies through tying up all available colors, cf. Morrissey v. Proctor & Gamble Co., 379 F.2d 675 (1 Cir. 1967), does not seem persuasive; the evidence showed that, in addition to the other primary colors, an endless number of color combinations was available to the defendants. The case for functionality thus depends on the evidence proffered by defendants that copying whatever colors Ives had chosen served a number of utilitarian purposes, see 455 F.Supp. at 949-50, essential" }, { "docid": "13105276", "title": "", "text": "as to source. The Eighth Circuit in Fruehauf set forth the following test for functionality: [WJhere the features are “functional” there is normally no right to relief. “Functional” in this sense might be said to connote other than a trade-mark purpose. If the particular feature is an important ingredient in the commercial success of the product, the interests in free competition permits its limitation in the absence of a patent or copyright. On the other hand, where the feature or, more aptly, design, is a mere arbitrary embellishment, a form of dress for the goods primarily adopted for purposes of identification and individuality and, hence, unrelated to basic consumer demands in connection with the product, imitation may be forbidden where the requisite showing of secondary meaning is made. 536 F.2d at 1217, quoting Bliss v. Gotham Industries, Inc., 316 F.2d 848, 855 (9th Cir.1963) (citations omitted). Plaintiff argues that the features comprising the design of its slipper are arbitrary and have nothing to do with the product’s usefulness. Rather, plaintiff contends that its design serves to identify and individualize its product, and therefore sets it apart from others in the marketplace. Basic consumer demand for slippers, according to the plaintiff, centers on features such as fit, durability, cost, and machine washability. Plaintiff therefore argues that the BEARFOOT™ design is non-functional and entitled to trademark protection. Defendant argues that it is the unusual appearance of the bear’s foot slipper that generates consumer demand, and that the bear’s foot design is therefore functional. Defendant places considerable reliance on the Ninth Circuit’s decision in Pagliero v. Wallace China Co., 198 F.2d 339 (9th Cir.1952). In Pagliero, a manufacturer and distributor of hotel china brought an unfair competition action based upon alleged copying of its designs. The court rejected the plaintiff’s claim on the ground that the designs on the china were non-protected functional features, noting that “[o]ne of the essential selling features of hotel china, if, indeed, not the primary, is the design[,] ... [and that] [t]he attractiveness and eye-appeal of the design sells the china.” Id. at 343. Defendant’s argument is not" }, { "docid": "23281509", "title": "", "text": "496 n.1 (10th Cir. 1978). II INFRINGEMENT This court held in New West Corp. v. NYM Co. of California, 595 F.2d 1194 (9th Cir. 1979), that section 43 of the Lanham Act, 15 U.S.C. § 1125(a), created a federal remedy against the deceptive use of unregistered trademarks to designate falsely the origin of goods (“passing off”). 595 F.2d at 1198, 1201. New West also held that the test for false designation of origin was similar to that for infringement of a registered trademark under 15 U.S.C. § 1114. Both statutes preclude the use of another’s trademark in a manner likely to confuse the public about the origin of goods. 595 F.2d at 1201. Thus, we must decide whether Lindeburg is likely to confuse the public about the origin of its jewelry by inscribing the Job’s Daughters name and emblem on it. Resolution of this issue turns on a close analysis of the way in which Lindeburg is using the Job’s Daughters insignia. In general, trademark law is concerned only with identification of the maker, sponsor, or endorser of the product so as to avoid confusing consumers. Trademark law does not prevent a person from copying so-called “functional” features of a product which constitute the actual benefit that the consumer wishes to purchase, as distinguished from an assurance that a particular entity made, sponsored, or endorsed a product. The distinction between trademarks and functional features is illustrated in Pagliero v. Wallace China Co., 198 F.2d 339 (9th Cir. 1952), where plaintiff, Wallace China, claimed trademark infringement on account of the use by others of the design it used on its china. The court found no trademark infringement because the design served primarily as a functional part of the product: Imitation of the physical details and designs of a competitor’s product may be actionable, if the particular features imitated are “non-functional” and have acquired a secondary meaning. But, where the features are “functional” there is normally no right to relief. “Functional” in this sense might be said to connote other than a trade-mark purpose. If the particular feature is an important ingredient" }, { "docid": "7557531", "title": "", "text": "allows copying of even ornamental or nonfunctional product features because they provide the basis for much of the product’s consumer appeal. Consumers often wish to purchase items or products of fanciful, nonutilitarian design without regard for the product’s source. Fanciful, ornamental, or aesthetically-pleasing features of these products thus fill a consumer need, without serving as a trademark or as an identifier of source. See International Order of Job’s Daughters v. Lindeburg & Co., 633 F.2d 912, 917 (9th Cir.1980), cert. denied, 452 U.S. 941, 101 S.Ct. 3086, 69 L.Ed.2d 956 (1981); Boston Professional Hockey Association v. Dallas Cap & Emblem Manufacturing, Inc., 510 F.2d 1004, 1013 (5th Cir.), cert. denied, 423 U.S. 868, 96 S.Ct. 132, 46 L.Ed.2d 98 (1975). Courts, including the district court in this case, have employed definitions of aesthetic functionality in cases not involving aesthetics, but utility. See, e.g., TESCO, 536 F.2d at 1217-18; Bliss v. Gotham Industries, Inc., 316 F.2d 848, 855 (9th Cir.1963). The district court cited the most prominent definition of aesthetic functionality, stated in Pagliero v. Wallace China Co., 198 F.2d 339, 343 (9th Cir.1952): “Functional” ... might be said to connote other than a trade-mark purpose. If the particular feature is an important ingredient in the commercial success of the product, the interest in free competition permits its imitation in the absence of a patent or copyright. On the other hand, where the feature or, more aptly, design, is a mere arbitrary embellishment, a form of dress for the goods primarily adopted for purposes of identification and individuality and, hence, unrelated to basic consumer demands in connection with the product, imitation may be forbidden where the requisite showing of secondary meaning is made. Under such circumstances, since effective competition may be undertaken without imitation, the law grants protection. This expansive definition of functionality has often been criticized as overinclusive. See John H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 983 n. 27 (11th Cir.1983); Note, 82 Colum.L.Rev. at 88 & nn. 84 & 85; see generally Note, The Broad Sweep of Aesthetic Functionality: A Threat to Trademark Protection of" }, { "docid": "23308299", "title": "", "text": "a mere form of merchandising or a business method. The law necessarily and naturally condemns any method of merchandising which unjustifiably tends to deceive or confuse the public. And so, in competitive goods, the appropriation of a non-functional aspect will generally be regarded as an improper method of merchandising and prohibited as unfair competition, in order to prevent probable deception or confusion of the public in the market. Fruehauf contends that each finding of the District Court is clearly erroneous. 1. Functionality Vel Non. Our review of the District Court’s finding of fact relative to the functionality vel non of the sloping-end walls and the drop-center-side walls of the Cornhusker 800 is, of course, guided by the applicable law. It is the rule that: “Imitation of the physical details and design of a competitor’s product may be actionable, if the particular features imitated are ‘non-functional’ and have acquired a secondary meaning. * * * But, where the features are ‘functional’ there is normally no right to relief. ‘Functional’ in this sense might be said to connote other than a trade-mark purpose. If the particular feature is an important ingredient in the commercial success of the product, the interests in free competition permits its imitation in the absence of a patent or copyright. On the other hand, where the feature or, more aptly, design, is a mere arbitrary embellishment, a form of dress for the goods primarily adopted for purposes of identification and individuality and, hence, unrelated to basic consumer demands in connection with the product, imitation may be forbidden where the requisite showing of secondary meaning is made. Under such circumstances, since effective competition may be undertaken without imitation, the law grants protection.” (Citations omitted.) Bliss v. Gotham Industries, Inc., supra at 855, citing from Pagliero v. Wallace China Co., 198 F.2d 339, 343 (9th Cir. 1952). Accord, J. C. Penney Co. v. H. D. Lee Mercantile Co., supra. The line between functionality and nonfunctionality is not, however, brightly drawn in every case. Some designs adopted for the purpose of identification are not wholly useless but perform a utilitarian function." }, { "docid": "3191138", "title": "", "text": "in the minds of the public because of the similarity between plaintiff’s and defendant’s product bears upon the infringement issue if the patent had been held valid. It is immaterial, however, to the issue of unfair competition because, as we have shown, the mere copying of a non-patented article or design, absent the other essential elements, does not constitute unfair competition.” Again assuming from similarity of the pitchers that appellees copied, the principles enunciated by Judge Orr in Pagliero v. Wallace China Co., 9 Cir., 198 F.2d 339, 343, apply here and support the findings and conclusions of the Trial Court that appellees have not engaged in unfair competition: “[5,6] Tepco’s use of the designs in question cannot be enjoined even though it be assumed that Wallace can establish secondary meaning for them. Imitation of the physical details and designs of a competitor’s product may be actionable, if the particular features imitated are ‘non-functional’ and have acquired a secondary meaning. Crescent Tool Co. v. Kilborn & Bishop Co., 2 Cir., 1917, 247 F. 299. But, where the features are ‘functional’ there is normally no right to relief. ‘Functional’ in this sense might be said to connote other than a trade-mark purpose. If the particular feature is an important ingredient in the commercial success of the product, the interest in free competition permits its imitation in the absence of a patent or copyright. On the other hand, where the feature or, more aptly, design, is a mere arbitrary embellishment, a form of dress for the goods primarily adopted for purposes of identification and individuality and, hence, unrelated to basic consumer demands in connection with the product, imitation may be forbidden where the requisite showing of secondary meaning is made. Under such circumstances, since effective competition may be undertaken without imitation, the law grants protection.” Then further on at page 344 the Court stated: “Hence, the design being a functional feature of the china, we find it unnecessary to inquire into the adequacy of the showing made as to secondary meaning of the designs.” Appellants have failed to prove the appellees represented" }, { "docid": "23281510", "title": "", "text": "or endorser of the product so as to avoid confusing consumers. Trademark law does not prevent a person from copying so-called “functional” features of a product which constitute the actual benefit that the consumer wishes to purchase, as distinguished from an assurance that a particular entity made, sponsored, or endorsed a product. The distinction between trademarks and functional features is illustrated in Pagliero v. Wallace China Co., 198 F.2d 339 (9th Cir. 1952), where plaintiff, Wallace China, claimed trademark infringement on account of the use by others of the design it used on its china. The court found no trademark infringement because the design served primarily as a functional part of the product: Imitation of the physical details and designs of a competitor’s product may be actionable, if the particular features imitated are “non-functional” and have acquired a secondary meaning. But, where the features are “functional” there is normally no right to relief. “Functional” in this sense might be said to connote other than a trade-mark purpose. If the particular feature is an important ingredient in the commercial success of the product, the interest in free competition permits its imitation in the absence of a patent or copyright. On the other hand, where the feature or, more aptly, design, is a mere arbitrary embellishment, a form of dress for the goods primarily adopted for purposes of identification and individuality and, hence, unrelated to basic consumer demands in connection with the product, imitation may be forbidden. . . . Under such circumstances, since effective competition may be undertaken without imitation, the law grants protection. 198 F.2d at 343 (citation omitted). See also Famolare, Inc. v. Melville Corp., 472 F.Supp. 738, 742-45 (D.Hawaii 1979); Boston Professional Hockey Ass’n, Inc. v. Dallas Cap & Emblem Mfg., Inc., 360. F.Supp. 459, 463-64 (N.D.Tex.1973), rev’d, Boston Professional Hockey Ass’n, Inc. v. Dallas Cap & Emblem Mfg., Inc., 510 F.2d 1004 (5th Cir.), cert. denied, 423 U.S. 868, 96 S.Ct. 132, 46 L.Ed.2d 98 (1975); Restatement of Torts § 742, comment (a) (1938). Application of the Pagliero distinction to this case has a special twist because" }, { "docid": "7557532", "title": "", "text": "China Co., 198 F.2d 339, 343 (9th Cir.1952): “Functional” ... might be said to connote other than a trade-mark purpose. If the particular feature is an important ingredient in the commercial success of the product, the interest in free competition permits its imitation in the absence of a patent or copyright. On the other hand, where the feature or, more aptly, design, is a mere arbitrary embellishment, a form of dress for the goods primarily adopted for purposes of identification and individuality and, hence, unrelated to basic consumer demands in connection with the product, imitation may be forbidden where the requisite showing of secondary meaning is made. Under such circumstances, since effective competition may be undertaken without imitation, the law grants protection. This expansive definition of functionality has often been criticized as overinclusive. See John H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 983 n. 27 (11th Cir.1983); Note, 82 Colum.L.Rev. at 88 & nn. 84 & 85; see generally Note, The Broad Sweep of Aesthetic Functionality: A Threat to Trademark Protection of Aesthetic Product Features, 51 Fordham L.Rev. 345 (1982). Defining functionality as anything that is “an important ingredient in the commercial success” of a product would almost always permit a second comer freely to copy the trade dress of a sue cessful product that has accumulated goodwill. See Note, 82 Colum.L.Rev. at 89. Even the Ninth Circuit has retreated from the Pagliero functionality standard. In Vuitton et Fils, S.A. v. J. Young Enterprises, Inc., 644 F.2d 769, 773-75 (9th Cir.1981), the court disagreed that “any feature of a product which contributes to the consumer appeal and saleability of the product is, as a matter of law, a functional element of that product.” Id. at 773. Moreover, the court acknowledged that a feature that “identifies the source of the goods and incidentally serves another function may still be entitled to protection.” Id. at 775. Young, the imitator, sought to appropriate Vuitton’s reputation by imitating the Vuitton mark. “Competition is not hindered by requiring Young to develop its own distinctive design for use in the decoration of its" }, { "docid": "686950", "title": "", "text": "shown that the features copied by Pax were nonfunctional and that they have achieved secondary meaning. See, e. g., Application of World’s Finest Chocolate, 474 F.2d 1012 (C.C.P.A.1973); Application of Mogen David Wine Corp., 328 F.2d 925, 51 C.C.P.A. 1260 (1964). See also Ives Laboratories, supra, wherein the Court of Appeals reaffirmed the formula for success under Section 43(a) of the Lanham Act: Imitation of the physical details and designs of a competitor’s product may be actionable, if the particular features imitated are “nonfunctional” and have acquired a secondary meaning. Crescent Tool Co. v. Kilborn & Bishop Co., 247 F. 299 (2d Cir. 1917). But, where the features are “functional” there is normally no right to relief. ‘Functional’ in this sense might be said to connote other than a trademark purpose. If the particular feature is an important ingredient in the commercial success of the product, the interest in free competition permits its imitation in the absence of a patent or copyright. On the other hand, where the feature or, more aptly, design, is a mere arbitrary embellishment, a form of dress for the goods primarily adopted for purposes of identification and individuality and, hence, unrelated to basic consumer demands in connection with the product, imitation may be forbidden where the requisite showing of secondary meaning is made. Under such circumstances, since effective competition may be taken without imitation, the law grants protection. 601 F.2d at 642-643 quoting Pagliero v. Wallace China Co., 198 F.2d 339, 343 (9th Cir. 1952). Plaintiff contends that it has met these criteria. One of its principals, Melvin Schifter has described the nonfunctional design features of the Le Sportsac line as follows: a. The web straps primarily contribute to “the design or the dress appearance of the bag”, p. 11, 1. 22. b. The brass lock and key plays “primarily a dress function, a unique characteristic that we introduced into this type of bag”, p. 12, 1. 25. c. The double-ended nylon zipper is “primarily a device that we thought of to enhance the looks of the bag. There is no . . . particular" }, { "docid": "20570728", "title": "", "text": "might be said to connote other than a trade-mark purpose. If the particular feature is an important ingredient in the commercial success of the product, the interest in free competition permits its imitation in the absence of a patent or copyright. On the other hand, where the feature or, more aptly, design, is a mere arbitrary embellishment, a form of dress for the goods primarily adopted for purposes of identification and individuality and hence, unrelated to basic consumer demands in connection with the product, imitation may be forbidden where the requisite showing of secondary meaning is made. Under such circumstances, since effective competition may be undertaken without imitation, the law grants protection. Id. at 343 (internal citations omitted). Applying that test, the china patterns were deemed “functional” because the “attractiveness and eye-appeal” of the design is the primary benefit that consumers seek in purchasing china. Id. at 343-44. Thus, Wallace’s designs were not “mere arbitrary embellishment,” but were at the heart of basic consumer demand for the product and could not be protected as trademarks. Almost thirty years later, Pagliero was revived in a Ninth Circuit case involving an effort by the International Order of Job’s Daughters to preclude a jewelry maker from selling jewelry bearing the Job’s Daughters insignia. See International Order of Job’s Daughters v. Lindeburg & Co., 633 F.2d 912 (9th Cir.1980). Because the defendant’s products bearing the Job’s Daughters mark were sold “on the basis of their intrinsic value, not as a designation of origin or sponsorship,” the defendant argued that they were functional under Pagliero. Id. at 918. The court acknowledged that a “name or emblem” could, in some cases, “serve simultaneously as a functional component of a product and a trademark,” and accordingly called for a “close analysis of the way in which [the defendant] is using the Job’s Daughters insignia.” Id. at 917-19. The court observed that Job’s Daughters had submitted no evidence that the defendant’s use of the mark either caused confusion as to source or was likely to do so and suggested that the emblem did not designate a source at" }, { "docid": "8853457", "title": "", "text": "functional if it embodies the benefit the consumer wishes to purchase, as opposed to an assurance that the product is manufactured or sponsored by a particular entity. Rachel v. Banana Republic, Inc., 831 F.2d 1503, 1506 (9th Cir.1987). The purpose of the distinction was ably expressed by our own Judge Orr in one of the earliest cases to apply it in the context of the Lanham Act: If the particular feature is an important ingredient in the commercial success of the product, the interest in free competition permits its imitation in the absence of a patent or copyright. On the other hand, where the feature or, more aptly, design, is a mere arbitrary embellishment, a form of dress for the goods primarily adopted for purposes of identification and individuality and, hence, unrelated to basic consumer demands in connection with the product, imitation may be forbidden where the requisite showing of secondary meaning is made. Under such circumstances, since effective competition may be undertaken without imitation, the law grants protection. Pagliero v. Wallace China Co., 198 F.2d 339, 343 (9th Cir.1952) (footnotes omitted). A product feature is accordingly functional “if it is essential to the use or purpose of the article or if it affects the cost or quality of the article.” Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 850 n. 10, 102 S.Ct. 2182, 2187 n. 10, 72 L.Ed.2d 606 (1982). See also Fuddruckers, Inc. v. Doc’s B.R. Others, Inc., 826 F.2d 837, 842 (9th Cir.1987). Where a copied product feature is partially functional but partially source-identifying, we are presented with three alternatives. First, we could find that the source-identifying aspects of the feature trump the functional aspects, and simply apply the standard law of trademark infringement. Second, we could find the opposite, and hold that the feature is unprotected from copying. Third, we could attempt to find an appropriate middle ground. We consider each alternative in turn. The first alternative has been adopted in a case very similar to this one. In National Football League Properties, Inc. v. Wichita Falls Sportswear, Inc., 532 F.Supp. 651 (W.D.Wash.1982)," } ]

[ { "docid": "22619978", "title": "", "text": "other parties and all persons affected thereby, may apply to the court in the county where the deposition was taken, or in the county where the action is pending, for an order compelling discovery . . . The Halkin decision was debated by the courts below. Prior to Halkin, the only Federal Court of Appeals to consider the question directly had understood that the First Amendment did not affect a trial court’s authority to restrict dissemination of information produced during pretrial discovery. See International Products Corp. v. Koons, 325 F. 2d 403, 407-408 (CA2 1963). Halkin considered the issue at length. Characterizing a protective order as a “paradigmatic prior restraint,” Halkin held that such orders require close scrutiny. The court also held that before a court should issue a protective order that restricts expression, it must be satisfied that “the harm posed by dissemination must be substantial and serious; the restraining order must be narrowly drawn and precise; and there must be no alternative means of protecting the public interest which intrudes less directly on expression.” 194 U. S. App. D. C., at 272, 598 F. 2d, at 191 (footnotes omitted). Rule 26(e) provides: “Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the county where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one" } ]

[ { "docid": "19213993", "title": "", "text": "St. Amant v. Thompson, 390 U.S. 727, 732-33, 88 S.Ct. 1323, 1326-27, 20 L.Ed.2d 262 (1968). For this reason, the court here “exercise[s] its ultimate prerogative to conduct a de novo review” of the Magistrate’s ruling. Foster v. Gloucester County Board of Chosen Freeholders, 465 F.Supp. 293, 296 (D.N.J.1978). See also 7 Moore’s Federal Practice 11 72.02[4.-9], at 72-20, 11 72.04[2.-6], at 72-53 (1984); 12 C. Wright & A. Miller, Federal Practice and Procedure § 3076.5, at 34 (1985 Supp.), citing, e.g., West v. Redman, 530 F.Supp. 546, 547-48 (D.Del.1982). B. The First Amendment Analysis Prior to May 21, 1984, the problem posed by the conflict between the first amendment right to free expression, on the one hand, and the court’s responsibility to oversee the discovery process, on the other, was the subject of considerable debate and legal uncertainty. The nation’s courts of appeal were divided on the issue: the Court of Appeals for the District of Columbia Circuit, in the much-discussed case of In re Halkin, 598 F.2d 176 (D.C.Cir.1979), held that first amendment rights attach to materials made available through the discovery process, 598 F.2d at 190, and that protective orders trenching on such rights pass constitutional muster only if the harm posed by dissemination [is] substantial and serious; the restraining order [is] narrowly drawn and precise; and there [is] no alternative means of protecting the public interest which intrudes less directly on expression. 598 F.2d at 191. The Court of Appeals for the First Circuit adopted a less stringent standard, which it characterized as “a position ... midway between those taken in the majority and dissenting opinions in Hal-kin.’’ In re San Juan Star Co., 662 F.2d 108, 116 (1st Cir.1981). It described such position as follows: We look to the magnitude and imminence of the threatened harm, the effectiveness of the protective order in preventing the harm, the availability of less restrictive means of doing so, and the narrowness of the order if it is deemed necessary. Our adaption [sic] of this standard in a civil discovery context, however, allows a court to be slightly less" }, { "docid": "10878591", "title": "", "text": "Washington rule, like the federal rule, permits a judge to impose a protective order on a showing of good cause. A Washington state trial judge exercised his discretion pursuant to this rule and imposed a protective order on materials received by a newspaper during discovery in a defamation and invasion of privacy action brought by a religious group. The newspaper had argued that a protective order would violate its First Amendment rights, but the trial judge imposed an order after plaintiffs submitted affidavits attesting to the likely adverse effects of disclosure of the discovered information. The Supreme Court of Washington affirmed the trial judge’s decision. The United States Supreme Court then affirmed the state court ruling. The Court opinion in Seattle Times rejected the holding in a prior case from this Circuit, In re Halkin, 598 F.2d 176 (D.C.Cir.1979), and held that the First Amendment does not require a court to apply especially close scrutiny in deciding whether to give parties to a civil litigation, including newspapers, a right to disseminate information gained through the pre-trial discovery process. Proper application of the good cause requirement in the state law equivalent of Rule 26(c) was found to be a sufficient safeguard for the press, and it appears clear from the Court’s decision that there was absolutely no dispute over the existence of “good cause” to justify the protective order. The Supreme Court noted that: The Supreme Court of Washington found that dissemination of this information would “result in annoyance, embarrassment and even oppression.” [Rhinehart v. Seattle Times Co., 98 Wash.2d 226] 654 P.2d [673] at 690 [1982]. It is sufficient for purposes of our decision that the highest court in the state found no abuse of discretion in the trial court’s decision to issue a protective order persuant [sic] to a constitutional state law. Seattle Times, — U.S. at-, 104 S.Ct. at 2209. The District Court in the instant case relied on In re Halkin, and obviously was influenced by First Amendment concerns as a result. To this extent, at least, the trial court’s decision is at odds with Seattle Times." }, { "docid": "22287770", "title": "", "text": "because there were first amendment interests at stake when the government engages in restraints on communication, especially when the restraints are in place before the communication ensues, there should be “heightened scrutiny” of the order. In re San Juan Star Co., 662 F.2d at 114-16. Heightened scrutiny requires an examination of “the magnitude and imminence of the threatened harm, the effectiveness of the protective order in preventing the harm, the availability of less restrictive means of doing so, and the narrowness of the order if it is deemed necessary.” Id. at 116. In Seattle Times, the Court reviewed a state court decision that declined to apply close or heightened scrutiny and instead applied only the “good cause” standard found in the state court equivalent of Rule 26(c). The spiritual leader of a religious group had moved for and hád been granted an order to protect the identities of the group’s donors and members. The Supreme Court of Washington upheld the order, concluding that the judiciary’s interest in controlling the discovery process outweighed the public’s interest in having access to that information. Seattle Times Co., 467 U.S. at 22-29, 104 S.Ct. at 2202-05. In examining the practice of restraining a litigant’s freedom to disseminate discovery information, the United States Supreme Court applied the heightened scrutiny test set forth in Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 1811, 40 L.Ed.2d 224 (1974). This standard of review applies to “incidental restrictions on First Amendment liberties by governmental action in furtherance of legitimate and substantial state interest other than suppression of expression.” Id. at 411-12, 94 S.Ct. at 1810. The Court considered “whether the ‘practice in question [furthers] an important or substantial governmental interest unrelated to the suppression of expression’ and whether ‘the limitation of First Amendment freedoms [is] no greater than is necessary or essential to the protection of the particular governmental interest involved.’ ” Seattle Times Co., 467 U.S. at 32, 104 S.Ct. at 2207 (quoting Procunier v. Martinez, 416 U.S. at 413, 94 S.Ct. at 1811). The Court found that protective orders further the important governmental interest of" }, { "docid": "3531081", "title": "", "text": "prohibited disclosure only of information derived from the discovery processes, its order would have been constitutional” because “[i]t may well be” that First Amendment rights are waived when parties take advantage of discovery). As the Halkin court noted, “we [do not] find clear and compelling evidence of an implied waiver of First Amendment rights in the system of civil discovery,” In re Halkin, supra, 598 F.2d at 189, because, absent a protective order, the discovery rules allow a party to use discovery materials “for any purpose, including dissemination to the public.” Id. at 188, see id. at 189 (clear and compelling circumstances must be shown to establish waiver of First Amendment rights). Another point that is seemingly undisputed is that the nature of this First Amendment interest is somewhat limited, and thus, a Rule 26(c) order restricting expression should not be evaluated by the stringent standards governing classic prior restraints. In re San Juan Star Co., supra, at 114-115; In re Halkin, supra, 598 F.2d at 206 (Wilkey, J., dissenting); see id. at 182-91 (majority opinion) (no express statement that the First Amendment interests were limited, but a standard less stringent than that governing prior restraints was adopted). But see Reliance Insurance Co. v. Barron’s, 428 F.Supp. 200, 204 (S.D.N.Y.1977) (in denying a request for a Rule 26(c) order restricting the dissemination of discovery materials, court characterized the proposed order as a prior restraint). See generally Note, Rule 26(c) Protective Orders and the First Amendment, 80 Colum.L.Rev. 1645, 1654-60 (1980) [hereinafter cited as Protective Orders ]; 92 Harv.L.Rev. 1550,1554-57 (1979). Prior restraints are rarely upheld because they are. viewed as “the most serious and least tolerable infringement on First Amendment rights.” Nebraska Press Association v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 2803, 49 L.Ed.2d 683 (1976). They are usually associated with administrative licensing schemes and judicial orders that forbid one from communicating about particular matters. In re Halkin, supra, 598 F.2d at 183-84 & nn.14&15; see Nebraska Press Association v. Stuart, supra; Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). For example, an" }, { "docid": "10878590", "title": "", "text": "of Rule 26(c), F.R.C.P., and it is FURTHER ORDERED, by the Court, en banc, that appellants’ suggestion that rehearing be withdrawn is dismissed as moot. MEMORANDUM In light of the Supreme Court’s recent decision in Seattle Times Co. v. Rhinehart, — U.S.-, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984), and for the reasons set out below, we remand this case to the District Court for further proceedings. This case initially reached the court of appeals after Judge Gasch exercised his discretion and lifted a protected order that he had earlier imposed on Mobile Corporation (\"Mobil”) depositions and exhibits, which the Washington Post had received during discovery in a libel trial. After concluding that Mobil had not adequately justified the continued need for confidentiality, Judge Gasch ordered the documents and depositions released. The issue before a panel of this court was whether the trial judge had abused his discretion, under Rule 26(c), Fed.R.Civ.P., in deciding- whether to maintain a protective order. The Seattle Times ease reached the appellate courts in a somewhat different posture. The relevant Washington rule, like the federal rule, permits a judge to impose a protective order on a showing of good cause. A Washington state trial judge exercised his discretion pursuant to this rule and imposed a protective order on materials received by a newspaper during discovery in a defamation and invasion of privacy action brought by a religious group. The newspaper had argued that a protective order would violate its First Amendment rights, but the trial judge imposed an order after plaintiffs submitted affidavits attesting to the likely adverse effects of disclosure of the discovered information. The Supreme Court of Washington affirmed the trial judge’s decision. The United States Supreme Court then affirmed the state court ruling. The Court opinion in Seattle Times rejected the holding in a prior case from this Circuit, In re Halkin, 598 F.2d 176 (D.C.Cir.1979), and held that the First Amendment does not require a court to apply especially close scrutiny in deciding whether to give parties to a civil litigation, including newspapers, a right to disseminate information gained through the" }, { "docid": "3531077", "title": "", "text": "obtain the fullest possible knowledge of the issues and facts before trial.” (footnote omitted)). To achieve these goals, the discovery rules allow litigants a broad right of access to information. For example, a party can seek not only information that can be used as evidence at trial, but also information that “appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). To avoid potential abuse of this broad right, however, the rules invest the trial court with discretionary authority to control the discovery process. 8 C. Wright & A. Miller, supra, § 2036, at 267-68. Thus, Rule 26(c) authorizes a court, upon a showing of good cause, to “make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c). Rule 26(c) “emphasizes the complete control that the court has over the discovery process.” 8 C. Wright & A. Miller, supra, § 2036, at 267. Recently, however, there has been recognition of a potential conflict between this power to supervise discovery and the First Amendment. In In re Halkin, 598 F.2d 176 (D.C.Cir.1979), and In re San Juan Star Co., 662 F.2d 108 (1st Cir. 1981), the D.C. Circuit and the First Circuit held that an order precluding dissemination of information obtained as a result of discovery implicates First Amendment interests and that the good cause standard embodied in Rule 26(c) does not protect those interests sufficiently. Consequently, both circuits adopted standards that supposedly provide greater protection for a litigant’s First Amendment interests. The present motion raises questions in this now controversial and relatively uncharted area of the law. Before turning to the merits of this motion, therefore, it is appropriate to discuss this controversy and the legal principles that will guide our course. A. The First Amendment Interest In Disseminating Information Obtained Through Discovery It appears fair to conclude that litigants and their lawyers have a First Amendment interest in disseminating information procured through discovery. In re San Juan Star Co., supra, at 115; National Polymer Products, Inc. v. Borg-Warner Corp., 641 F.2d 418, 423" }, { "docid": "3531082", "title": "", "text": "opinion) (no express statement that the First Amendment interests were limited, but a standard less stringent than that governing prior restraints was adopted). But see Reliance Insurance Co. v. Barron’s, 428 F.Supp. 200, 204 (S.D.N.Y.1977) (in denying a request for a Rule 26(c) order restricting the dissemination of discovery materials, court characterized the proposed order as a prior restraint). See generally Note, Rule 26(c) Protective Orders and the First Amendment, 80 Colum.L.Rev. 1645, 1654-60 (1980) [hereinafter cited as Protective Orders ]; 92 Harv.L.Rev. 1550,1554-57 (1979). Prior restraints are rarely upheld because they are. viewed as “the most serious and least tolerable infringement on First Amendment rights.” Nebraska Press Association v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 2803, 49 L.Ed.2d 683 (1976). They are usually associated with administrative licensing schemes and judicial orders that forbid one from communicating about particular matters. In re Halkin, supra, 598 F.2d at 183-84 & nn.14&15; see Nebraska Press Association v. Stuart, supra; Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). For example, an order barring the press from publishing anything about a lawsuit would most likely be termed a prior restraint. See Nebraska Press Association v. Stuart, supra. Although Rule 26(c) orders that restrict expression are similar in form to other orders that have been characterized as prior restraints, compare In re San Juan Star Co., supra, at 111 with Nebraska Press Association v. Stuart, supra, 427 U.S. at 542, 96 S.Ct. at 2794, the special nature of discovery as a source of information justifies a reduced level of scrutiny. In re San Juan Star Co., supra, at 115; In re Halkin, supra, 598 F.2d at 206-08 (Wilkey, J., dissenting); see Protective Orders, supra, at 1654 (one’s interest in disseminating information procured through discovery is similar to that of “persons who are under government control to a greater extent than the general public” and whose First Amendment “rights may be infringed to a greater extent than those of the general public” because of “the government’s need to maintain control over its own institutions”). First, a stringent standard that" }, { "docid": "19213994", "title": "", "text": "rights attach to materials made available through the discovery process, 598 F.2d at 190, and that protective orders trenching on such rights pass constitutional muster only if the harm posed by dissemination [is] substantial and serious; the restraining order [is] narrowly drawn and precise; and there [is] no alternative means of protecting the public interest which intrudes less directly on expression. 598 F.2d at 191. The Court of Appeals for the First Circuit adopted a less stringent standard, which it characterized as “a position ... midway between those taken in the majority and dissenting opinions in Hal-kin.’’ In re San Juan Star Co., 662 F.2d 108, 116 (1st Cir.1981). It described such position as follows: We look to the magnitude and imminence of the threatened harm, the effectiveness of the protective order in preventing the harm, the availability of less restrictive means of doing so, and the narrowness of the order if it is deemed necessary. Our adaption [sic] of this standard in a civil discovery context, however, allows a court to be slightly less severe when considering the degree and imminence of the harm that might ensue if communications to the press are not prohibited. Thus, we consider the magnitude of the harm threatened by disclosure and the likelihood of that harm occurring, but we think these considerations are best applied on a sliding scale: as the potential grows more grave, the imminence necessary is reduced. Ibid. The Second Circuit disagreed with the notion that first amendment concerns were implicated by a legitimate protective order. International Products Corp. v. Koons, 325 F.2d 403, 407 (2d Cir.1963). When the Supreme Court of Washington agreed with the position of the Second Circuit, the Supreme Court granted certiorari to resolve the conflict then existing between the circuits. Seattle Times Co. v. Rhinehart, 467 U.S. 20, -, 104 S.Ct. 2199, 2205, 81 L.Ed.2d 17 (1984). The Court’s decision in Seattle Times clarifies both the applicability of the first amendment to protective orders issued in the civil discovery context, and the standard to be utilized in conducting the resulting constitutional analysis. Thus, the Court" }, { "docid": "22287768", "title": "", "text": "on February 25, 1986. The issues before us are “capable of repetition, yet evading review.” The appeal is not moot. III. THE PROTECTIVE ORDERS A. First Amendment Implications There is the potential for an infringement of the first amendment whenever the government prohibits or restrains free speech or publication. The district court issued protective orders denying the Globe access to information obtained through discovery. The Globe contends that this violated its first amendment rights. The district court issued the September 16 and October 28 protective orders pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, which allows a court to issue a protective order “for good cause shown.” Because of our “concern that the government not lightly engage in any restraints on communication, particularly when the order is issued prior to the expression taking place,” we have held that the good cause test incorporates a “heightened sensitivity” to the first amendment. In re San Juan Star Co., 662 F.2d 108, 115-16 (1st Cir.1981). We must reconsider our holding in the light of the United States Supreme Court’s recent decision in Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). Before the Supreme Court spoke in Seattle Times, the courts did not agree on the test for protective orders. Until 1979, the only opinion dealing with the issue had held that the first amendment was not implicated at all in a trial court’s decision to restrict discovery information. International Products Corp. v. Koons, 325 F.2d 403, 407-08 (2d Cir.1963). In 1979, the District of Columbia Circuit took the opposite position. It held that a discovery protection order constituted a prior restraint and must be subjected to close scrutiny. In re Halkin, 598 F.2d 176, 183-86 (D.C.Cir.1979). Close scrutiny requires an inquiry into three factors: the nature of the harm posed by dissemination of the information, whether the order was as narrow as possible, and whether less restrictive alternatives were available. Id. at 191. In In re San Juan Star Co., we declined to adopt the close scrutiny test of Halkin, but held that" }, { "docid": "3531113", "title": "", "text": "of discovery materials. . The court “stress[ed] that the mere allegation of conjectural harm is insufficient to meet the moving party’s burden.” In re Halkin, supra, 598 F.2d at 194 n.42. . In San Juan Star, relatives of two suspected Puerto Rican terrorists who had been killed in a shootout with police brought a federal civil rights action in the District of Puerto Rico, alleging that government officials had conspired to arrange the killings. Because the shooting was one of the most controversial events “in recent Puerto Rico history,” the lawsuit received intense media coverage and generated much public interest. For example, the depositions of the defendants were reported, and both sides then attempted to explain the testimony to the press. Consequently, the dis trict court entered several orders, one of which forbade “attorneys from disclosing any evidence obtained through subsequent depositions to the press ... or to any third party.” In re San Juan Star Co., supra, at 111. The San Juan Star Co., a newspaper, intervened in the lawsuit and challenged the order. The Court of Appeals affirmed. See id, at 118. . The Court can also consider factors that may tip the scales toward issuing a protective order — for example, whether the litigant’s motive for disseminating the information constitutes “an abuse of the discovery process.” National Polymer Products, Inc. v. Borg-Warner Corp., supra, 641 F.2d at 424. . The defendants suggest that all that is needed to enter an order that precludes the dissemination of information obtained through discovery in the Second Circuit is a showing of good cause. In support of this proposition, they cite Judge Friendly’s statement that “we entertain no doubt as to the constitutionality of a rule allowing a federal court to forbid the publicizing, in advance of trial, of information obtained by one party from another by use of the court’s processes.” International Products Corp. v. Koons, 325 F.2d 403, 407 (2d Cir. 1963). Although the Second Circuit may yet hold that the good cause standard protects a litigant’s First Amendment interests sufficiently, we do not believe that such a conclusion" }, { "docid": "22881973", "title": "", "text": "found it unnecessary to answer the question in Criden, which was decided on nonconstitutional grounds. We will address each of these First Amendment questions in turn. With respect to Rule 26(c) protective orders, we conclude that litigants’ First Amendment interests in the dissemination of discovery materials are adequately protected by the balancing of interests for and against nondisclosure and drafting such orders in the least restrictive manner possible. With respect to the question whether the common law right to inspect and copy has a constitutional dimension, we conclude that it does not. B. First Amendment Rights in Discovery Materials Plaintiffs assert that their First Amendment rights to disseminate information in their possession is violated by our continued enforcement of PTO 35. Arguing that Rule 26(c) protective orders are prior restraints of speech, they contend that PTO 35 cannot survive analysis in light of “ ‘[t]he heavy presumption against . . . constitutional validity’ that an order restraining publication bears,” Nebraska Press Association v. Stuart, supra, 427 U.S. at 545, 96 S.Ct. at 2796, quoting New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822 (1971). The Third Circuit has not decided whether the dissemination of information contained in discovery materials is entitled to First Amendment protection. The best known opinion that analyzes protective orders under the First Amendment, and concludes that they must be viewed as prior restraints of speech, is that of the District of Columbia Circuit Court of Appeals in In re Halkin, supra. In a very recent opinion, In re San Juan Star Co., supra, the First Circuit decided that Rule 26(c) protective orders implicate “significant but limited” First Amendment interests. Id., at 114. Chief Judge Coffin for the First Circuit announced a less exacting test of constitutionality than did the District of Columbia Circuit, one that we think better takes account of the special nature of discovery materials. We will review both decisions and then explain why we find San Juan Star the more persuasive. In In re Halkin, the court reviewed a district court order that restrained" }, { "docid": "22287767", "title": "", "text": "and completion of the trial — and this period had been held by the Supreme Court to be “short enough to cause action which would be mooted if not reviewed within that time to evade review.” Id. at 1329 (citing Southern Pacific Terminal Co. v. ICC, 219 U.S. at 514-16, 31 S.Ct. at 283). Protective orders similarly would evade review. They necessarily will be in effect for less time than the sealing order the District of Columbia Circuit found to be inadequate in duration to allow review. The sealing order’s duration was measured from the beginning of discovery until the completion of the trial; a protective order preventing dissemination of discovery information prior to jury selection will end before the trial begins. The protective order prohibiting the Globe access to discovery materials clearly was too short in duration to be litigated before it was vacated. The Globe intervened on December 12, 1985, and moved to modify the October 8 protective order at the same time; the district court vacated the order only seventy-five days later on February 25, 1986. The issues before us are “capable of repetition, yet evading review.” The appeal is not moot. III. THE PROTECTIVE ORDERS A. First Amendment Implications There is the potential for an infringement of the first amendment whenever the government prohibits or restrains free speech or publication. The district court issued protective orders denying the Globe access to information obtained through discovery. The Globe contends that this violated its first amendment rights. The district court issued the September 16 and October 28 protective orders pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, which allows a court to issue a protective order “for good cause shown.” Because of our “concern that the government not lightly engage in any restraints on communication, particularly when the order is issued prior to the expression taking place,” we have held that the good cause test incorporates a “heightened sensitivity” to the first amendment. In re San Juan Star Co., 662 F.2d 108, 115-16 (1st Cir.1981). We must reconsider our holding in the light of the" }, { "docid": "3531086", "title": "", "text": "not advance the informed civic and political discussion that the First Amendment is intended to protect. We do not see present in the case of civil discovery those interests that make publicity in a criminal trial an important “safeguard against any attempt to employ our courts as instruments of persecution.” Nor can the discovery processes lay claim to the long tradition of openness enjoyed by. criminal or civil trials. We conclude, therefore, that although there is a First Amendment interest in information produced at trial that warrants full protection, a judicially-powered process compelling information that has not yet passed through the adversary-judicial filter for testing admissibility does not create communications that deserve full protection. In re San Juan Star. Co., supra, at 115 (citations omitted). It seems only fitting that a court should be allowed to exercise reasonable control over information that it has compelled a litigant to disclose. See In re Halkin, supra, 598 F.2d at 206-08 (Wilkey, J., dissenting) (Because access results from a system that reserves to the court the power to restrict the use of discovered information, the litigant obtains only a limited interest in information received through the discovery system, that is, he accepts it subject to the possibility that the court may restrict its use.). B. The Standards for Protecting the First Amendment Interest The major area of disagreement concerns what showing must be made to justify an infringement on this somewhat limited First Amendment interest. Three standards have been utilized: the good cause standard of Rule 26(c), the Iia/Iah*liFan3ard, *- r~-- irsrv,. - and the San Juan Star standard. The ostensibly strictest test was enunciated by the D.C. Circuit in In re Halkin, supra. Because of its view that a restriction on dissemination of discovery materials “constitutes direct governmental action limiting speech,” id. at 183, the court concluded that such an order can be entered only after “close scrutiny of its impact on protected First Amendment expression.” Id. at 186. Specifically, it adopted a two-tiered approach. The initial inquiry is to determine the nature of the restraint. “An order restraining publication of official" }, { "docid": "22881974", "title": "", "text": "York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822 (1971). The Third Circuit has not decided whether the dissemination of information contained in discovery materials is entitled to First Amendment protection. The best known opinion that analyzes protective orders under the First Amendment, and concludes that they must be viewed as prior restraints of speech, is that of the District of Columbia Circuit Court of Appeals in In re Halkin, supra. In a very recent opinion, In re San Juan Star Co., supra, the First Circuit decided that Rule 26(c) protective orders implicate “significant but limited” First Amendment interests. Id., at 114. Chief Judge Coffin for the First Circuit announced a less exacting test of constitutionality than did the District of Columbia Circuit, one that we think better takes account of the special nature of discovery materials. We will review both decisions and then explain why we find San Juan Star the more persuasive. In In re Halkin, the court reviewed a district court order that restrained the parties and their counsel from discussing or disclosing publicly any “documents and information” obtained from certain federal agencies through discovery. The court found that the order “pose[d] many of the dangers of a prior restraint,” so that its impact on constitutionally protected expression had to be scrutinized closely, 598 F.2d at 186, and then proceeded to examine the First Amendment interests of the litigants that were affected by the district court order. Because the right to disseminate information does not depend on the method of its acquisition, cf. New York Times Co. v. United States, 403 U.S. at 745, 91 S.Ct. at 2157 (refusing to restrain publication of stolen government documents), and participation in civil litigation cannot by itself constitute a waiver of First Amendment rights, cf. Curtis Publishing Co. v. Butts, 388 U.S. 130, 145, 87 S.Ct. 1975, 1986, 18 L.Ed.2d 1094 (1967) (declining to find waiver “in circumstances which fall short of being clear and compelling”), the court determined that discussion of information obtained through discovery was protected expression. Therefore, the Halkin" }, { "docid": "3531078", "title": "", "text": "and the First Amendment. In In re Halkin, 598 F.2d 176 (D.C.Cir.1979), and In re San Juan Star Co., 662 F.2d 108 (1st Cir. 1981), the D.C. Circuit and the First Circuit held that an order precluding dissemination of information obtained as a result of discovery implicates First Amendment interests and that the good cause standard embodied in Rule 26(c) does not protect those interests sufficiently. Consequently, both circuits adopted standards that supposedly provide greater protection for a litigant’s First Amendment interests. The present motion raises questions in this now controversial and relatively uncharted area of the law. Before turning to the merits of this motion, therefore, it is appropriate to discuss this controversy and the legal principles that will guide our course. A. The First Amendment Interest In Disseminating Information Obtained Through Discovery It appears fair to conclude that litigants and their lawyers have a First Amendment interest in disseminating information procured through discovery. In re San Juan Star Co., supra, at 115; National Polymer Products, Inc. v. Borg-Warner Corp., 641 F.2d 418, 423 (6th Cir. 1981); In re Halkin, supra, 598 F.2d at 187-91, see id. at 206 (Wilkey, J., dissenting) (although it is argued that a Rule 26(e) order that restricts expression can be entered upon the mere showing of good cause, the existence of as First Amendment interest is not seriously* disputed); 92 Harv.L.Rev. 1550, 1554 (1979) (same). All persons have an interest in communicating ideas and information to others, In re San Juan Star Co., supra, at 115, regardless of the manner in which the information was acquired. In re Halkin, supra, 598 F.2d at 187-88; accord, In re Upjohn Co. Antibiotic Cleocin Products Liability Litigation, 81 F.R.D. 482, 486 (E.D. Mich.1979); see Rodgers v. United States Steel Corp., 536 F.2d 1001, 1008 n.16 (3d Cir. 1976). Moreover, one cannot state cate gorically that the fruits of discovery fall within one of the traditional classifications of speech unprotected by the First Amendment. In re Halkin, supra, 598 F.2d at 188. Although discovery could sometimes yield unprotected matter, it can also reveal information that “lies near" }, { "docid": "22287773", "title": "", "text": "2209. Seattle Times has foreclosed any claim of an absolute public right of access to discovery materials. The Third Circuit has interpreted the Court’s opinion as entirely eliminating the first amendment as a factor in the review of discovery protective orders, holding “that Seattle Times prohibits a court considering a protective order from concerning itself with first amendment considerations.” Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1118- 20 (3d Cir.1986) (emphasis added). We do not agree with this interpretation. The Supreme Court did not hold that the first amendment was not implicated at all when a protective order is issued. It held that the first amendment rights were implicated “to a far lesser extent than would restraints on dissemination of information in a different context.” Seattle Times Co., 467 U.S. at 34, 104 S.Ct. at 2208 (emphasis added). The Court did not hold that a discovery protective order could never offend the first amendment. It held that the first amendment is not offended if three criteria are met: (1) there is a showing of good cause as required by Rule 26(c); (2) the restriction is limited to the discovery context; and (3) the order does not restrict the dissemination of information obtained from other sources. Id. at 37, 104 S.Ct. at 2209. In our opinion, this means that first amendment considerations cannot be ignored in reviewing discovery protective orders. Although the “strict and heightened” scrutiny tests no longer apply, the first amendment is still a presence in the review process. Protective discovery orders are subject to first amendment scrutiny, but that scrutiny must be made within the framework of Rule 26(c)’s requirement of good cause. The Third Circuit gained “confidence” in its interpretation that the first amendment had been read out of protective order review from two other courts of appeals decisions: Worrell Newspapers of Indiana, Inc. v. Westhafer, 739 F.2d 1219, 1223-24 n. 4 (7th Cir.1984), aff'd, 469 U.S. 1200, 105 S.Ct. 1155, 84 L.Ed.2d 309 (1985), and Tavoulareas v. Washington Post Co., 737 F.2d 1170, 1172-73 (D.C.Cir.1984). As we read them, however, the cited cases merely reiterated" }, { "docid": "22881977", "title": "", "text": "such materials — access which they would not ordinarily have — through a statutory system that expressly reserves to the courts the power to attach restrictions on the use of such materials. 598 F.2d at 206 (Wilkey, J., dissenting). Judge Wilkey concluded that the district court’s power under the Rules of Civil Procedure to limit or condition the use of information obtained in discovery is necessary to “overall fairness” because of the broad scope of discovery permitted by the Rules. In San Juan Star, the First Circuit reviewed a district court order that barred counsel in a civil rights action from disseminating to the parties or the public any information obtained through deposition testimony. That court concluded that Rule 26(c) protective orders implicate First Amendment interests, but that the interests of litigants, their attorneys, and others in discovery materials are more limited than their interests in disseminating other kinds of information. Because discovery rules are liberal, much of the information obtained thereby may never be used at trial; it may be inadmissible because it is irrelevant or unduly prejudicial. For that reason, the court held that raw deposition testimony is not information entitled to full First Amendment protection because its disclosure would not serve to inform “civic and political discussion,” to permit monitoring of the judicial system, or to implement values of judicial openness. At 115. The San Juan Star court was unwilling to deprive discovery materials of all constitutional protection, however, since the First Amendment expresses a concern that “the government not lightly engage in any restraints on communication, particularly when the order is issued prior to the expression taking place.” Id. The important role played by protective orders in facilitating discovery and expediting litigation was also noted. In light of these considerations, the court held that the proper standard for determining the constitutional validity of a protective order is a less stringent than usual application of the test applied to prior restraints. Thus the court would examine the nature of the threatened harm, the effectiveness of the order, the availability of less restrictive alternatives, and the narrowness of" }, { "docid": "2295366", "title": "", "text": "documents were filed allowed the public to have access to them. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33, 104 S.Ct. 2199, 2208, 81 L.Ed.2d 17 (1984) (holding that “restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information” (emphasis added)). Such previous public access is a factor to be considered under Hubbard. 650 F.2d at 318. Further, the fact that the exhibits and attachments were referenced in the public filings of the parties may create a public need for them. Cf id. at 318 (fact that documents are “specifically referred to in the trial judge’s public decision” creates a public need for those documents). We leave it to the district court to weigh these competing factors in the first instance. C. The Depositions Finally, the district court ordered that “any and all depositions in this case ... remain in the custody of the parties but [are not to] be used for any other purpose or in any other litigation without leave of’ the court. Rule 26(e) of the Federal Rules of Civil Procedure provides that “for good cause shown,” including “annoyance, embarrassment, oppression, or undue burden or expense,” a district court may issue a protective order as to discovery material. In Seattle Times Co., 467 U.S. at 22, 104 S.Ct. at 2201-02, the Supreme Court considered a First Amendment challenge to protective orders issued under a state law analogue to Federal Rule 26(c). The Court held that where “a protective order is entered on a showing of good cause as required by Rule 26(e), is limited to the context of pretrial discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment.” Id. at 37, 104 S.Ct. at 2209-10. This is so, the Court explained, because “pretrial depositions and interrogatories are not public components of a civil trial.” Id. at 33, 104 S.Ct. at 2207. The EEOC argues, relying on our opinion in In re Halkin, 598 F.2d 176 (D.C.Cir.1979), that a district court may not" }, { "docid": "3531087", "title": "", "text": "restrict the use of discovered information, the litigant obtains only a limited interest in information received through the discovery system, that is, he accepts it subject to the possibility that the court may restrict its use.). B. The Standards for Protecting the First Amendment Interest The major area of disagreement concerns what showing must be made to justify an infringement on this somewhat limited First Amendment interest. Three standards have been utilized: the good cause standard of Rule 26(c), the Iia/Iah*liFan3ard, *- r~-- irsrv,. - and the San Juan Star standard. The ostensibly strictest test was enunciated by the D.C. Circuit in In re Halkin, supra. Because of its view that a restriction on dissemination of discovery materials “constitutes direct governmental action limiting speech,” id. at 183, the court concluded that such an order can be entered only after “close scrutiny of its impact on protected First Amendment expression.” Id. at 186. Specifically, it adopted a two-tiered approach. The initial inquiry is to determine the nature of the restraint. “An order restraining publication of official court records open to the public, or an order restraining political speech, implicates different interests than an order restraining commercial information.” Id. at 191 (footnotes omitted). The next step is for the court to determine if three criteria have been satisfied. First, the nature of the harm threatened by dissemination must be substantial and serious. Id. at 191, 192-93. There must be a “specific showing that dissemination of the discovery materials would pose a concrete threat to an important countervailing interest.” Id. at 193 (footnote omitted). Second, the order must be narrowly drawn and precise. Id. at 191, 193-95. Third, there must be no alternative means of avoiding the harm that will be less restrictive of expression. Id. at 191, 195. In attempting to strike a balance between the First Amendment interests of litigants and society’s interest in the effective operation of the discovery system, the First Circuit, in In re San Juan Star Co., supra, adopted a standard that is described as midway between the Halkin standard and one of good cause. At 116." }, { "docid": "22287769", "title": "", "text": "United States Supreme Court’s recent decision in Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). Before the Supreme Court spoke in Seattle Times, the courts did not agree on the test for protective orders. Until 1979, the only opinion dealing with the issue had held that the first amendment was not implicated at all in a trial court’s decision to restrict discovery information. International Products Corp. v. Koons, 325 F.2d 403, 407-08 (2d Cir.1963). In 1979, the District of Columbia Circuit took the opposite position. It held that a discovery protection order constituted a prior restraint and must be subjected to close scrutiny. In re Halkin, 598 F.2d 176, 183-86 (D.C.Cir.1979). Close scrutiny requires an inquiry into three factors: the nature of the harm posed by dissemination of the information, whether the order was as narrow as possible, and whether less restrictive alternatives were available. Id. at 191. In In re San Juan Star Co., we declined to adopt the close scrutiny test of Halkin, but held that because there were first amendment interests at stake when the government engages in restraints on communication, especially when the restraints are in place before the communication ensues, there should be “heightened scrutiny” of the order. In re San Juan Star Co., 662 F.2d at 114-16. Heightened scrutiny requires an examination of “the magnitude and imminence of the threatened harm, the effectiveness of the protective order in preventing the harm, the availability of less restrictive means of doing so, and the narrowness of the order if it is deemed necessary.” Id. at 116. In Seattle Times, the Court reviewed a state court decision that declined to apply close or heightened scrutiny and instead applied only the “good cause” standard found in the state court equivalent of Rule 26(c). The spiritual leader of a religious group had moved for and hád been granted an order to protect the identities of the group’s donors and members. The Supreme Court of Washington upheld the order, concluding that the judiciary’s interest in controlling the discovery process outweighed the public’s interest" } ]

[ { "docid": "22133934", "title": "", "text": "taking off on Coors’ advertising which uses the slogan of ‘Silver Bullet’ for its beer cans, the text proclaims that Coors is ‘The Silver Bullet that aims The Far Right’s political agenda at the heart of America.’ ” 811 F. Supp. 993, 995 (SDNY 1993). Amtrak’s vice president disapproved the advertisement, invoking Amtrak’s policy, inherited from its predecessor as landlord of Penn Station, the Pennsylvania Railroad Company, “that it will not allow political advertising on the [Sjpectacular advertising sign.” App. 285. Lebrón then filed suit against Amtrak and TDI, claiming, inter alia, that the refusal to place his advertisement on the Spectacular had violated his First and Fifth Amendment rights. After expedited discovery, the District Court ruled that Amtrak, because of its close ties to the Federal Government, was a Government actor, at least for First Amendment purposes, and that its rejection of Lebron’s proposed advertisement as unsuitable for display in Penn Station had violated the First Amendment. The court granted Lebrón an injunction and ordered Amtrak and TDI to display Lebron’s advertisement on the Spectacular. The United States Court of Appeals for the Second Circuit reversed. 12 F. 3d 388 (1993). The panel’s opinion first noted that Amtrak was, by the terms of the legislation that created it, not a Government entity, id., at 390; and then concluded that the Federal Government was not so involved with Amtrak that the latter’s decisions could be considered federal action, id., at 391-392. Chief Judge Newman dissented. We granted certiorari. 511 U. S. 1105 (1994). II We have held once, Burton v. Wilmington Parking Authority, 365 U. S. 715 (1961), and said many times, that actions of private entities can sometimes be regarded as governmental action for constitutional purposes. See, e. g., San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522, 546 (1987); Blum v. Yaretsky, 457 U. S. 991, 1004 (1982); Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 172 (1972). It is fair to say that “our cases deciding when private action might be deemed that of the state have not been" } ]

[ { "docid": "16896972", "title": "", "text": "constitutional purposes by examining the corporation’s purpose, activities, board composition, financing, and its overall relationship to the federal government. Id. at 397-99, 115 S.Ct. 961. The Lebrón Court held that “where ... the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government for purposes of the First Amendment.” Id. at 400, 115 S.Ct. 961. All of the factors that led the Court to consider Amtrak a state actor apply with equal, if not greater, force to LSC. Congress created LSC to fulfill an important governmental objective by providing legal services in noncriminal matters to the underprivileged. See 42 U.S.C. § 2996. Unlike Amtrak, which has some privately-appointed Directors, LSC’s Board is composed entirely of political appointees, id. § 2996e(a), and LSC’s funding is almost entirely made up of federal appropriations. Id. § 2996L From the reasoning and holding of Lebrón, there is no question that LSC is a state actor for purposes of the Fifth Amendment’s Due Process Clause. Cf. Texas Rural Legal Aid, Inc. v. Legal Services Corp., 940 F.2d 685, 699 (D.C.Cir.1991) (LSC is state actor when it issues regulations pursuant to LSC Act); Legal Aid Soc’y of Hawaii v. Legal Services Corp., 961 F.Supp. 1402, 1408 n. 4 (D.Haw.1997) (same). LSC may be sued for violating the Due Process Clause. To the extent that Newman and Spokane County indicate otherwise, they have been implicitly overruled. B. The Evidence Does Not Support Wilkinson’s Due Process Claim The Fifth Amendment’s Due Process Clause provides that “[n]o person shall be ... deprived of life, liberty, or property, without due process of law____” U.S. Const. amend. V. This majestic provision has been invoked to correct a broad range of governmental missteps — from the shocking to the banal. The inquiry under the Clause comes in two parts: (1) has the plaintiff been deprived of an interest protected by the Clause?; and if so, (2) was the plaintiff afforded the process due with respect to" }, { "docid": "19356579", "title": "", "text": "was a federal entity, created by statute for a government purpose and controlled entirely by the United States. Amtrak’s board of directors consisted of nine members: the Secretary of Transportation, five appointed by the President, Amtrak’s president (appointed by the Board), and two elected by the holders of preferred stock (all of which was owned by the United States). Id. at 385, 115 S.Ct. 961. Lebrón focused on whether the government maintained permanent control over Amtrak. Id. at 385,115 S.Ct. 961. Fannie Mae argues that, prior to the conservatorship, it was not under governmental control and the conservatorship did not change anything. It also argues that, even if it were under government control during the conservatorship, that control is inherently temporary. Several federal district courts have come to this conclusion with respect to Fannie Mae. For example, in Parra v. Federal Nat’l Mortgage Ass’n, the district court explained that a plaintiff could not maintain a 42 U.S.C. § 1983 claim for violation of due process rights against Fannie Mae because it is not a “state actor.” Parra explained why: Here, plaintiff’s allegations are insufficient to establish the necessary state action. It is well-settled that Fannie Mae is not a state actor for purposes of establishing the necessary state action. See Herron v. Fannie Mae, 857 F.Supp.2d 87, 92 (D.D.C.2012) (“[T]he imposition of conservatorship ... did not transform Fannie Mae into a government actor.”); Syriani v. Freddie Mac Multiclass Certificates, Series 3365, 2012 WL 6200251, *4 (C.D.Cal.2012) (citing to Herron in support of the proposition that a post-conservatorship Freddie Mac “does not become a governmental actor for Fifth Amendment purposes merely because it is placed into conservatorship”); Bernard v. Federal Nat. Mortg. Ass’n, 2013 WL 1282016, *3 (E.D.Mich.2013) (“Fannie Mae, and similar entity Freddie Mac, are not governmental actors post-conservatorship.”); Fannie Mae v. Mandry, 2013 WL 687056, *4 (E.D.Mich.2013) (same). Similarly, the FHFA, which took over as Fannie Mae’s conservator, also does not qualify as a government actor. When FHFA “serves as conservator,” it “step[s] into the shoes of the private corporation, Fannie Mae.” Herron, 857 F.Supp.2d at 94 (alteration in" }, { "docid": "20783504", "title": "", "text": "viewed as largely uncollectible. STANDARD OF REVIEW Dismissal for failure to state a claim on which relief can be granted is reviewed de novo. Stone v. Travelers Corp., 58 F.3d 434, 436-37 (9th Cir.1995). A grant of summary judgment is also reviewed de novo. Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). DISCUSSION I. Freddie Mac’s Actions Were Not Subject to the Fifth Amendment Appellant asserts that the district court erred in concluding that its allegation that Freddie Mac violated its Fifth Amendment rights by terminating its eligibility without due process failed to state a claim. Because the Fifth Amendment Due Process Clause applies only to the federal government, Public Utilities Commission v. Pollak, 343 U.S. 451, 461, 72 S.Ct. 813, 820, 96 L.Ed. 1068 (1952), Freddie Mac is not restricted by that Clause unless it is part of the federal government or its actions constituted federal action. We conclude that neither is the case. A. Freddie Mac Is Not a Government Entity The Supreme Court’s recent decision in Lebron v. National Railroad Passenger Corp., — U.S.-, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995), provides the appropriate framework for analysis of Freddie Mac’s governmental status. The Court there held that “where ... the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government for purposes of the First Amendment.” Id. at ---, 115 S.Ct. at 974-75. Since Freddie Mac is a corporation chartered by Congress, the two relevant criteria for judging Freddie Mae’s status as a federal entity for Fifth Amendment purposes are the extent to which its objectives are governmental and the extent to which the government directs and controls the corporation’s pursuit of those objectives. 1. Objectives The Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) wrote the purposes of Freddie Mac into law for the first time. In the Federal Housing Enterprises Financial Safety and Soundness Act of 1992, Congress emphasized the public nature of" }, { "docid": "11413967", "title": "", "text": "“public and judicial understanding of the nature of Government-created and -controlled corporations over the years,” see id. at 394-97, 115 S.Ct. 961, the Court noted that arrangements providing for temporary government control over a government-created corporation do not make that corporation a government actor, see id. at 398-99, 115 S.Ct. 961. The Court then concluded that a corporation is “part of the Government” for constitutional purposes when: “[ (1) ] the Government creates [the] corporation by special law, [ (2) ] for the furtherance of governmental objectives, and [ (3) ] retains for itself permanent authority to appoint a majority of the directors of that corporation Id. at 400, 115 S.Ct. 961. Applying these criteria, the Court held that Amtrak was a government actor because “it is established and organized under federal law for the very purpose of pursuing federal governmental objectives, under the direction and control of federal governmental appointees.” See id. at 397-98, 115 S.Ct. 961. As our sister circuits recognize, Lebrón sets forth a three-part standard to determine whether a government-created corporation is part of the government for constitutional purposes. See, e.g., Hack, 237 F.3d at 83-84. This-case satisfies the first two Le-brón criteria. Congress created Fannie Mae to accomplish a number of governmental objectives for the national housing market. See 12 U.S.C. §§ 1716, 1716b, 4501; Perry Capital, 848 F.3d at 1080. Although Congress converted Fannie Mae to a private corporation in 1968, “its charter, and therefore its function ..., were unchanged.” DeKalb Cty., 741 F.3d at 797. Neither Fannie Mae nor the FHFA challenge that Congress’s creation of Fannie Mae furthered “governmental objectives.” See Am. Bankers Mortg. Corp. v. Fed. Home Loan Mortg. Corp., 75 F.3d 1401, 1406-07 (9th Cir. 1996) (holding that Freddie Mac satisfied the first two Lebrón criteria). The real dispute in this case centers on the final Lebrón criterion: permanent government control. Herron urges that permanent government control is not required under the Lebrón framework. But “[w]e think Lebrón means what it says.” Hack, 237 F.3d at 84. To find that a government-created corporation is a government actor for constitutional purposes," }, { "docid": "11413968", "title": "", "text": "is part of the government for constitutional purposes. See, e.g., Hack, 237 F.3d at 83-84. This-case satisfies the first two Le-brón criteria. Congress created Fannie Mae to accomplish a number of governmental objectives for the national housing market. See 12 U.S.C. §§ 1716, 1716b, 4501; Perry Capital, 848 F.3d at 1080. Although Congress converted Fannie Mae to a private corporation in 1968, “its charter, and therefore its function ..., were unchanged.” DeKalb Cty., 741 F.3d at 797. Neither Fannie Mae nor the FHFA challenge that Congress’s creation of Fannie Mae furthered “governmental objectives.” See Am. Bankers Mortg. Corp. v. Fed. Home Loan Mortg. Corp., 75 F.3d 1401, 1406-07 (9th Cir. 1996) (holding that Freddie Mac satisfied the first two Lebrón criteria). The real dispute in this case centers on the final Lebrón criterion: permanent government control. Herron urges that permanent government control is not required under the Lebrón framework. But “[w]e think Lebrón means what it says.” Hack, 237 F.3d at 84. To find that a government-created corporation is a government actor for constitutional purposes, Lebrón clearly requires permanent government control. See 513 U.S. at 398-99, 115 S.Ct. 961. Otherwise put, permanency is “a necessary condition precedent” to consider a government-created corporation part of the government. Sprauve, 799 F.3d at 233 n.8 (citations omitted). We do not read Department of Transportation v. Association of American Railroads, — U.S. —, 135 S.Ct. 1225, 191 L.Ed.2d 153 (2015), as dispensing with the permanency requirement. Consistent with Lebrón, the Court in Association of American Railroads concluded that “the practical reality of federal control and supervision,” not a statutory disclaimer, controls when determining an entity’s status. See id. at 1231-33; see also Lebron, 513 U.S. at 392-93, 399, 115 S.Ct. 961. Because the government’s permanent control over Amtrak was already established in Lebrón, the Court had no occasion to revisit that question in Association of American Railroads. Moreover, we generally presume that the Court does not overturn or limit its prior holdings through silence or implication. See, e.g., Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 18, 120 S.Ct. 1084," }, { "docid": "11413969", "title": "", "text": "Lebrón clearly requires permanent government control. See 513 U.S. at 398-99, 115 S.Ct. 961. Otherwise put, permanency is “a necessary condition precedent” to consider a government-created corporation part of the government. Sprauve, 799 F.3d at 233 n.8 (citations omitted). We do not read Department of Transportation v. Association of American Railroads, — U.S. —, 135 S.Ct. 1225, 191 L.Ed.2d 153 (2015), as dispensing with the permanency requirement. Consistent with Lebrón, the Court in Association of American Railroads concluded that “the practical reality of federal control and supervision,” not a statutory disclaimer, controls when determining an entity’s status. See id. at 1231-33; see also Lebron, 513 U.S. at 392-93, 399, 115 S.Ct. 961. Because the government’s permanent control over Amtrak was already established in Lebrón, the Court had no occasion to revisit that question in Association of American Railroads. Moreover, we generally presume that the Court does not overturn or limit its prior holdings through silence or implication. See, e.g., Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 18, 120 S.Ct. 1084, 146 L.Ed.2d 1 (2000); Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). Accordingly, the Lebrón framework requires permanency. See, e.g., Meridian Invs., Inc. v. Fed. Home Loan Mortg. Corp., 855 F.3d 573, 578-79 (4th Cir. 2017) (applying permanency requirement after Association of American Railroads). We therefore turn to the question of whether the federal government exercises permanent control over Fannie Mae. Fannie Mae’s organic statute, see 12 U.S.C. §§ 1716b, 1718(a), 1723(b), does not place it “under the direction and control of federal governmental appointees,” cf. Lebron, 513 U.S. at 385-86, 397-98, 115 S.Ct. 961. Herron, therefore, does not dispute that Fannie Mae was a private entity before the conservatorship. See, e.g., Northrip v. Fed. Nat’l Mortg. Ass’n, 527 F.2d 23, 30-32 (6th Cir. 1975); see also Am. Bankers, 75 F.3d at 1407-09 (applying the Lebrón framework and concluding that pre-conser-vatorship Freddie Mac was not a government actor because the government did not “control the operation of Freddie Mac through its appointees” (quoting Lebron, 513" }, { "docid": "20783512", "title": "", "text": "Tort Claims Act and the Merrill doctrine, respectively. Moreover, two district courts, in addition to the one that decided this case, have expressly found that Freddie Mac’s termination of a seller/servicer was not subject to the Fifth Amendment. Liberty Mortgage Banking, Ltd. v. Federal Home Loan Mortgage Corp., 822 F.Supp. 956, 958-60 (E.D.N.Y.1993) (Freddie Mac was private corporation rather than government agency; decision to terminate plaintiff as seller/servieer could not be deemed government action); FBMC Fin., Inc. v. Federal Home Loan Mortgage Corp., No. 91 cv. 1226-R (S.D.Cal.Sept. 26, 1991) (discussed in Liberty Mortgage, 822 F.Supp. at 960). In addition, two other circuits have held that the Federal National Mortgage Association (“Fannie Mae”) is not subject to the Fifth Amendment Due Process Clause. Northrip v. Federal National Mortgage Ass'n, 527 F.2d 23, 30 (6th Cir.1975) (corporation was federally chartered and regulated but stock traded on New York Stock Exchange and only 5 of 15 directors were appointed by President); Roberts v. Cameron-Brown Co., 556 F.2d 356, 359 (5th Cir.1977) (relying on Northrip and holding that FNMA’s activities did not qualify as governmental action). While Freddie Mac is chartered to pursue federal governmental objectives, the level of government control over the corporation is so much lower than that exercised over Amtrak we conclude that, upon an application of Lebrón principles, that Freddie Mac is not a government agency subject to the Fifth Amendment’s Due Process Clause. B. Freddie Mae’s Actions Did Not Constitute Federal Action for Constitutional Purposes ABM argues that even if Freddie Mac is not a governmental entity, its actions in terminating appellants as seller/servicers should be subject to the requirements of the Fifth Amendment’s Due Process Clause because the terminations were federal action. “The standards utilized to find federal action for purposes of the Fifth Amendment are identical to those employed to detect state action subject to the strictures of the Fourteenth Amendment.” Geneva Towers Tenants Org. v. Federated Mortgage Investors, 504 F.2d 483, 487 (9th Cir.1974). Because the Court’s consideration of the state action question in San Francisco Arts & Athletics, Inc. v. United States Olympic Committee," }, { "docid": "3406022", "title": "", "text": "agreement. They assert that under the PTFA, they had a right to remain in the home after the foreclosure sale, that Freddie Mac did not allow them to stay for the duration of their lease, and that Freddie Mac evicted them without providing 90 days’ notice. They contend that they were injured as a result of this eviction. The facts alleged by the Miks are plausible and support a claim for the tort of wrongful eviction. Therefore, we reverse the district court’s dismissal of the Miks’ complaint with respect to this claim. B. The complaint also alleges that Freddie Mac “failed to follow due process prior to evicting [the Miks] from their home” by “disregarding]” the PTFA and by “failing to obtain a Forcible -Detainer and name [the Miks] as parties” to the foreclosure action. On appeal, the Miks elaborate on their claim. First, they argue that Freddie Mac violated Kentucky civil procedure by failing to join them in the foreclosure action, either as named or unknown defendants, and by failing to constructively serve them with process. Second, they argue that Freddie Mac violated their federal constitutional rights by failing to provide them with proper notice before evicting them. To the extent that the Miks seek to bring a claim for violations of Kentucky civil procedure, they fail to state a claim upon which relief can be granted. The Miks do not identify—and our research does not reveal—a cause of action for violations of Kentucky civil ' procedure. Moreover, Freddie Mac was not a party to the foreclosure action and cannot be held responsible for any procedural defects in the proceedings. To the extent that the Miks seek to bring a claim for violations of their due process rights under the Fifth Amendment to the United States Constitution, they fail to state a claim upon which relief can be granted because Freddie Mac is not a government actor who can be held liable for constitutional violations. In Lebron v. National Railroad Passenger Corp., 513 U.S. 374, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995), the Supreme Court established a framework for" }, { "docid": "3406021", "title": "", "text": "acts the landlord is responsible, he may maintain therefor an action of tort against the landlord and may recover as general damages the actual or rental value of the unexpired term less the rent reserved, * * * and in addition, therto [sic], compensation for whatever other loss results * * * which can be ascertained with a reasonable degree of certainty and can properly be said to have been the natural or usual result of the breach and reasonably to have been within the contemplation of both parties as the probable result of a breach.” Kearns v. Sparks, 296 S.W.2d 731, 732 (Ky.1956) (quoting 32 Am.Jur., Landlord & Tenant § 265); see also Batson v. Clark, 980 S.W.2d 566, 576-77 (Ky.Ct.App.1998) (acknowledging that a wrongful eviction may also be characterized as a breach of contract claim). A landlord can be held liable for wrongful eviction even if he did not engage in an “intentional wrongful act.” Kearns, 296 S.W.2d at 732-33. The Miks allege that they occupied Meyer’s home pursuant to a valid lease agreement. They assert that under the PTFA, they had a right to remain in the home after the foreclosure sale, that Freddie Mac did not allow them to stay for the duration of their lease, and that Freddie Mac evicted them without providing 90 days’ notice. They contend that they were injured as a result of this eviction. The facts alleged by the Miks are plausible and support a claim for the tort of wrongful eviction. Therefore, we reverse the district court’s dismissal of the Miks’ complaint with respect to this claim. B. The complaint also alleges that Freddie Mac “failed to follow due process prior to evicting [the Miks] from their home” by “disregarding]” the PTFA and by “failing to obtain a Forcible -Detainer and name [the Miks] as parties” to the foreclosure action. On appeal, the Miks elaborate on their claim. First, they argue that Freddie Mac violated Kentucky civil procedure by failing to join them in the foreclosure action, either as named or unknown defendants, and by failing to constructively serve them" }, { "docid": "20783505", "title": "", "text": "National Railroad Passenger Corp., — U.S.-, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995), provides the appropriate framework for analysis of Freddie Mac’s governmental status. The Court there held that “where ... the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government for purposes of the First Amendment.” Id. at ---, 115 S.Ct. at 974-75. Since Freddie Mac is a corporation chartered by Congress, the two relevant criteria for judging Freddie Mae’s status as a federal entity for Fifth Amendment purposes are the extent to which its objectives are governmental and the extent to which the government directs and controls the corporation’s pursuit of those objectives. 1. Objectives The Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) wrote the purposes of Freddie Mac into law for the first time. In the Federal Housing Enterprises Financial Safety and Soundness Act of 1992, Congress emphasized the public nature of these purposes. The congression al purposes for Freddie Mac are clearly designed to serve the public interest by increasing the availability of mortgages on housing for low- and moderate-income families and by promoting nationwide access to mortgages. At least one Court of Appeals has held that Freddie Mac “certainly furthers an important federal mission, and does act as a federal agency or instrumentality in this sense”. Mendrala v. Crown Mortgage Co., 955 F.2d 1132, 1139 (7th Cir.1992) (finding Freddie Mae nonetheless not a federal agency for claims under the Federal Tort Claims Act). The Mendrala court also found Freddie Mae’s purposes sufficiently governmental to qualify the corporation to enjoy protection from estoppel under the doctrine of Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947): “The FHLMC has a public statutory mission: to maintain the secondary mortgage market and assist in meeting low- and moderate-income housing goals.” 955 F.2d at 1140-41 (footnote omitted) (emphasis added). Thus, Freddie Mac’s purposes are “federal governmental objectives” for the purpose of analyzing" }, { "docid": "19770159", "title": "", "text": "by common shareholders). Pre conservator-ship, Fannie Mae had 15 board members; of these 15, 5 were appointed by the President and 10 were elected by common shareholders. Northrip, 527 F.2d at 30 (6th Cir.1975). Pre conservatorship Fannie Mae, like Comsat, was a nongovernmental entity under the reasoning set forth in Lebrón. Since Lebron, no other court has been presented with the issue of whether preconservatorship Fannie Mae was a federal actor. However, the Ninth Circuit held that pre-conservatorship Freddie Mac, a similar entity, was not a government actor under Lebrón. In American Bankers Mortgage Corp. v. Federal Home Loan Mortgage Corp., 75 F.3d 1401, 1405 (9th Cir.1996), American Bankers brought suit asserting that Freddie Mac violated the Fifth Amendment due process clause when it terminated American Bankers’ status as a mortgage loan seller and servicer. Because the Fifth Amendment applies only the federal government, Freddie Mac could only be subject to its limitations if it were part of the federal government. The Ninth Circuit determined that it was not. Although Congress created Freddie Mac to serve the public interest by increasing the availability of mortgages for low and moderate income families, Freddie Mac was not a federal entity that could be liable under the due process clause because it was not controlled by the United States. Id. at 1409. Freddie Mac had a board of directors numbering eighteen, thirteen of whom were elected annually by the common shareholders and five of whom were appointed by the U.S. President. There were 60 million shares of common stock in Freddie Mac, which were publieally traded on the New York Stock Exchange. Id. at 1407. Fannie Mae, like Freddie Mac, was publieally traded on the New York Stock Exchange. See Frank v. Bear Stearns & Co., 128 F.3d 919, 923 n. 2 (5th Cir.1997) (Fannie Mae was owned entirely by private stockholders; its stock was traded on the NYSE). Also, like Freddie Mac, Fannie Mae was controlled by a Board of Directors elected annually by shareholders. See 12 U.S.C. § 1718(a); id. § 1723(b); see also Northrip, 527 F.2d at 30. Fannie Mae" }, { "docid": "19770158", "title": "", "text": "was created by statute for a government purpose and was controlled entirely by the United States. Amtrak’s board of directors consisted of nine members: the Secretary of Transportation, five appointed by the President, Amtrak’s president (appointed by the Board), and two elected by the holders of preferred stock (all of which was owned by the United States). Id. at 385, 115 S.Ct. 961. By way of comparison, the Court noted that the Communications Satellite Corporation (“Comsat”) was nongovernmental because only three of its fifteen directors were appointed by the President. Id. at 390, 115 S.Ct. 961. A. Pre Conservatorship Fannie Mae When Fannie Mae was created by Congress, the government did not retain the permanent authority to appoint the majority of its directors. Congress expressly designated Fannie Mae as a private corporation, see 12 U.S.C. § 1716b, controlled by a Board of Directors elected annually by Fannie Mae shareholders. See 12 U.S.C. § 1718(a) (providing that common shareholders have right to vote for directors); id. § 1723(b) (providing that Fannie Mae’s board is elected annually by common shareholders). Pre conservator-ship, Fannie Mae had 15 board members; of these 15, 5 were appointed by the President and 10 were elected by common shareholders. Northrip, 527 F.2d at 30 (6th Cir.1975). Pre conservatorship Fannie Mae, like Comsat, was a nongovernmental entity under the reasoning set forth in Lebrón. Since Lebron, no other court has been presented with the issue of whether preconservatorship Fannie Mae was a federal actor. However, the Ninth Circuit held that pre-conservatorship Freddie Mac, a similar entity, was not a government actor under Lebrón. In American Bankers Mortgage Corp. v. Federal Home Loan Mortgage Corp., 75 F.3d 1401, 1405 (9th Cir.1996), American Bankers brought suit asserting that Freddie Mac violated the Fifth Amendment due process clause when it terminated American Bankers’ status as a mortgage loan seller and servicer. Because the Fifth Amendment applies only the federal government, Freddie Mac could only be subject to its limitations if it were part of the federal government. The Ninth Circuit determined that it was not. Although Congress created Freddie Mac to" }, { "docid": "19356577", "title": "", "text": "v. National Railroad Passenger Corp., 513 U.S. 374, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995), Fannie Mae is a private corporation and not a government actor for constitutional purposes. In opposition, Plaintiff argues that Fannie Mae is a government actor following its take-over by FHFA. Fannie Mae operates in the secondary mortgage market, purchasing residential mortgages, pursuant to 12 U.S.C. § 1716. In 1968, Congress privatized Fannie Mae, transforming it into a “private corporation.” 12 U.S.C. § 1716(b). In 2008, Congress created FHFA to act as conservator or receiver of Fannie Mae for purposes of “reorganizing, rehabilitating, or winding up [its] affairs.” 12 U.S.C. § 4617(a)(2). FHFA then placed Fannie Mae and the Federal Home Loan Mortgage Corporation (“Freddie Mac”) into conservator-ships. As Conservator, FHFA may: (i)take over the assets of and operate the regulated entity with all the powers of the shareholders, the directors, and the officers of the regulated entity and conduct all business of the regulated entity; (ii) collect all obligations and money due the regulated entity; (iii) perform all functions of the regulated entity in the name of the regulated entity which are consistent with the appointment as conservator or receiver; (iv) preserve and conserve the assets and property of the regulated entity; and (v) provide by contract for assistance in fulfilling any function, activity, action, or duty of the Agency as conservator or receiver. 12 U.S.C. § 4617(b)(2)(B). Fannie Mae argues it is not a government actor for purposes of Plaintiffs constitutional claim, despite the conservator-ship. In Lebron v. National Railroad Passenger Corp., the Supreme Court defined what type of entity constitutes a federal actor for the purpose of a constitutional claim. The threshold question is whether a federal actor was involved, as purely private action does not trigger constitutional protection. A corporation is part of the federal government when Congress creates the entity “by special law, for the furtherance of governmental objectives, and retainfs] for itself permanent authority to appoint a majority of the directors of that corporation.” Lebron, 513 U.S. at 400, 115 S.Ct. 961. The Supreme Court determined in Lebrón that Amtrak" }, { "docid": "11413970", "title": "", "text": "146 L.Ed.2d 1 (2000); Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). Accordingly, the Lebrón framework requires permanency. See, e.g., Meridian Invs., Inc. v. Fed. Home Loan Mortg. Corp., 855 F.3d 573, 578-79 (4th Cir. 2017) (applying permanency requirement after Association of American Railroads). We therefore turn to the question of whether the federal government exercises permanent control over Fannie Mae. Fannie Mae’s organic statute, see 12 U.S.C. §§ 1716b, 1718(a), 1723(b), does not place it “under the direction and control of federal governmental appointees,” cf. Lebron, 513 U.S. at 385-86, 397-98, 115 S.Ct. 961. Herron, therefore, does not dispute that Fannie Mae was a private entity before the conservatorship. See, e.g., Northrip v. Fed. Nat’l Mortg. Ass’n, 527 F.2d 23, 30-32 (6th Cir. 1975); see also Am. Bankers, 75 F.3d at 1407-09 (applying the Lebrón framework and concluding that pre-conser-vatorship Freddie Mac was not a government actor because the government did not “control the operation of Freddie Mac through its appointees” (quoting Lebron, 513 U.S. at 399, 115 S.Ct. 961) (alterations omitted)). Rather, she argues that the FHFA’s conservatorship converted Fannie Mae into a government actor because it gave the government de facto permanent control over Fannie Mae. As noted, HERA authorized the FHFA “to undertake extraordinary economic measures” with regard to Fannie Mae, including placing it into conservatorship. Perry Capital, 848 F.3d at 1080-81. Herron asserts that the conservatorship transformed Fannie Mae into a government actor because the federal government now exercises “pervasive and far-reaching” control over Fannie Mae, including the authority to determine its future. This is not the first time a plaintiff has advanced this argument, see, e.g., Rubin v. Fannie Mae, 587 Fed.Appx. 273, 275 (6th Cir. 2014); Wright v. Fed. Nat’l Mortg. Ass’n, No. 1:13-cv-4294, 2014 WL 12042555, at *2-3 (N.D. Ga. Sept. 22, 2014), and it is not without some appeal. Nevertheless, Herron’s argument misses the mark because the conservatorship does not amount to permanent government control. The FHFA became conservator “for the purpose of reorganizing, rehabilitating, or winding up the affairs” of" }, { "docid": "3405998", "title": "", "text": "a private right of action against the Secretary for those harmed by the Secretary’s actions, but it did not provide a private right of action against individuals or non-governmental entities who violate TARP’s provisions. 12 U.S.C. § 5229; see also Gullatt, 2010 WL 4070379, at *5; Pantoja v. Countrywide Home Loans, Inc., 640 F.Supp.2d 1177, 1185 (N.D.Cal.2009). “The express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others.” Sandoval, 532 U.S. at 290, 121 S.Ct. 1511. “Because Congress included an express provision for private enforcement under one section of the Homes Act, it is ‘highly improbable that Congress absentmindedly forgot to mention an intended private action’ for other sections of the statute.” Logan, 722 F.3d at 1172 (quoting Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 20, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979)). Because neither the text nor the statutory structure indicate that Congress intended to provide a private right of action, our analysis need go no further. Sandoval, 532 U.S. at 316 n. 7, 121 S.Ct. 1511 (“[T]he interpretive inquiry begins with the text and structure of the statute and ends once it has become clear that Congress did not provide a cause of action.”). We hold that the PTFA does not provide an express or implied private right of action. IV. The district court properly held that the PTFA does not provide the Miks with a federal cause of action. However, it erred by construing their complaint as stating only claims based on the PTFA. The complaint alleges that the Miks “were wrongfully evicted,” that Freddie Mac “deni[ed them] due process,” and that Freddie Mac’s actions “were outrageous and inflicted .severe emotional distress upon the [Miks].” Therefore, we must consider whether relief may be granted with respect to these claims. Before we do so, however, we must address the status .of the Miks’ lease following the foreclosure sale and what Freddie Mac’s obligations were as the successor in interest to the foreclosed property. Freddie Mac argues that the foreclosure sale terminated the Miks’ lease and that Freddie Mac properly" }, { "docid": "3406023", "title": "", "text": "with process. Second, they argue that Freddie Mac violated their federal constitutional rights by failing to provide them with proper notice before evicting them. To the extent that the Miks seek to bring a claim for violations of Kentucky civil procedure, they fail to state a claim upon which relief can be granted. The Miks do not identify—and our research does not reveal—a cause of action for violations of Kentucky civil ' procedure. Moreover, Freddie Mac was not a party to the foreclosure action and cannot be held responsible for any procedural defects in the proceedings. To the extent that the Miks seek to bring a claim for violations of their due process rights under the Fifth Amendment to the United States Constitution, they fail to state a claim upon which relief can be granted because Freddie Mac is not a government actor who can be held liable for constitutional violations. In Lebron v. National Railroad Passenger Corp., 513 U.S. 374, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995), the Supreme Court established a framework for determining when a government-sponsored corporation is a government actor for constitutional purposes. It held that “where ... the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part- of the Government for purposes of the First Amendment.” Id. at 399, 115 S.Ct. 961., Under the Lebrón framework, Freddie Mac is not a government actor who can be held liable for violations of the Fifth Amendment’s Due Process Clause. See, e.g., Am. Bankers Mortg. Corp. v. Fed. Home Loan Mortg. Corp., 75 F.3d 1401, 1406-09 (9th Cir.1996) (reasoning that Freddie Mac was created by federal law to serve the public by increasing the availability of mortgages but that the government does not control the operation of Freddie Mac through its appointees); see also Syriani v. Freddie Mac Multiclass Certificates, Series 3365, No. CV 12-3035, 2012 WL 6200251, at *4 (C.D.Cal. July 10, 2012) (holding that Freddie Mac is not a government actor even" }, { "docid": "19356581", "title": "", "text": "original) (footnote omitted); 12 U.S.C. § 4617(b)(2)(A)(i) (FHFA Conservator, upon inception of conservatorship, succeeds to “all rights, titles, powers, and privileges of the regulated entity, and of any stockholder, officer, or director!)]”). “In such circumstances, the federal agency in its guise as a conservator or receiver of a private corporation is not a government actor.” Herron, 857 F.Supp.2d at 94 (emphasis added); see also Syriani, 2012 WL 6200251, at *4 (“Freddie Mac does not become a governmental actor for Fifth Amendment purposes merely because it is placed into conservatorship. The [FHFA’s] ‘control’ is merely the same control that Freddie Mac had before conservator-ship.”). Parra v. Federal Nat’l Mortg. Ass’n, 2013 WL 5638824, at *3 (C.D.Cal. Oct. 16, 2013) (alterations in Parra). In opposition, Plaintiff argues that Fannie Mae’s role as HAMP administrator and the government’s ownership of a controlling interest in Fannie Mae stock demonstrate that it is a state actor under government control. According to Plaintiff, “Fannie Mae is not expected to ever return to its pre-conservatorship status, [therefore] the foreclosure of Plaintiffs home was a government action.” Mem. in Opp’n to FHFA Motion at 8. Several courts have rejected these arguments. For example, the court in Herron v. Fannie Mae, 857 F.Supp.2d 87, 96 (D.D.C.2012), held that the government’s “warrant to purchase common stock and its ownership of non-voting Senior Preferred Stock do not give the United States permanent control over Fannie Mae and do not make Fannie Mae a government entity under Lebrón.” It also held that even if the duration of the conservatorship is indefinite, “FHFA’s control over Fannie Mae is temporary.” Id. at 95. Plaintiff has not provided any compelling authority or argument to persuade this Court to rule otherwise. The Court agrees with those courts in this Circuit and others that have considered and rejected Plaintiffs argument that Fannie Mae is a government actor by virtue of the FHFA conservatorship. Consistent with these decisions, this Court concludes that the FHFA’s conservatorship does not create the type of permanent control required under Lebron. See, e.g., Parra v. Federal Nat’l Mortg. Ass’n, 2013 WL 5638824, at" }, { "docid": "3405980", "title": "", "text": "OPINION JULIA SMITH GIBBONS, Circuit Judge. In May 2012, Paul F. Mik, Jr., Lee Ann Mik, and PALS Enterprises, LLC (collectively, “the Miks”) filed suit against the Federal Home Loan Mortgage Corporation (“Freddie Mac”), arguing that they were unlawfully evicted from their rental home after their landlord defaulted on her mortgage and the property was sold at a foreclosure sale. The district court granted Freddie Mac’s motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). It interpreted the Miks’ complaint as asserting claims under the Protecting Tenants at Foreclosure Act of 2009 (“PTFA”), which imposes certain requirements on successors in interest to foreclosed properties in order to protect tenants. The district court held that the PTFA does not provide a private right of action and dismissed the complaint. On appeal, the Miks argue that their claims do not arise under the PTFA and that their complaint asserts claims for wrongful eviction, denial of due process, and outrageous infliction of emotional distress under Kentucky law. We hold that the PTFA does not provide a private right of action. Nonetheless, the PTFA requires successors in interest to foreclosed properties to provide bona fide tenants with 90 days’ notice to vacate and to allow them to occupy the premises until the end of their lease term unless certain conditions are met. The PTFA’s requirements preempt state laws that provide less protection to tenants. While tenants may not bring a federal cause of action for violations of the PTFA, they may use such violations to establish the elements of a state law cause of action. We hold that the Miks have stated a claim for wrongful eviction but have failed to state claims for denial of due process and outrageous infliction of emotional distress. Therefore, we reverse in part and affirm in part. I. The Miks allege the following facts in their complaint, and for purposes of reviewing the district court’s grant of Freddie Mac’s motion to dismiss, we accept their allegations as true. See Reilly v. Vadlamudi, 680 F.3d 617, 622 (6th Cir.2012). Paul Mik and his wife Lee" }, { "docid": "3405986", "title": "", "text": "home until they were given the notice to vacate required in the statute and until the expiration of the remaining term of the lease as prescribed in the statute, during which time the [Miks] anticipated that their loan application would be approved and they would be able to purchase the subject property from [Freddie Mac], Next, the complaint alleged that the Miks “were wrongfully evicted- when [Freddie Mac] failed to follow due process prior to evicting the [Miks] from their home.” More specifically, it alleged that Freddie Mac evicted the Miks without naming them as parties to the foreclosure action or bringing a forcible detainer action against them. Finally, the complaint alleged that Freddie Mae’s actions “were outrageous and inflicted severe emotional distress upon the [Miks].” Paul Mik claimed that he “has suffered mental anguish” and Lee Ann Mik stated that she “has experienced severe emotional pain and suffering for which she has been provided medical treatment.” Freddie Mac filed a motion to dismiss the Miks’ complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that Miks’ claims are premised on the PTFA, which does not create a private right of action. The district court granted Freddie Mac’s motion to dismiss. First, it held that the Miks cannot state a claim under the PTFA, which does not provide an express or implied private right of action. It observed that while the PTFA may be raised as a defense in a foreclosure action in state court, it does not provide a basis for recovering damages in federal court. Second, the district court held that “a reading of the Complaint makes it clear that [the Miks] have asserted only causes of actions under the Act and not under state law.” Moreover, it noted that a foreclosure sale extinguishes the rights of tenants under Kentucky law and, therefore, tenants must raise a defense of due process or unfair conduct during foreclosure proceedings, which the Miks did not do. The Miks timely appealed the district court’s dismissal of their complaint. II. “[A]ll civil actions to which [Freddie Mac] is a party shall be" }, { "docid": "3406024", "title": "", "text": "determining when a government-sponsored corporation is a government actor for constitutional purposes. It held that “where ... the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part- of the Government for purposes of the First Amendment.” Id. at 399, 115 S.Ct. 961., Under the Lebrón framework, Freddie Mac is not a government actor who can be held liable for violations of the Fifth Amendment’s Due Process Clause. See, e.g., Am. Bankers Mortg. Corp. v. Fed. Home Loan Mortg. Corp., 75 F.3d 1401, 1406-09 (9th Cir.1996) (reasoning that Freddie Mac was created by federal law to serve the public by increasing the availability of mortgages but that the government does not control the operation of Freddie Mac through its appointees); see also Syriani v. Freddie Mac Multiclass Certificates, Series 3365, No. CV 12-3035, 2012 WL 6200251, at *4 (C.D.Cal. July 10, 2012) (holding that Freddie Mac is not a government actor even though the Federal Housing Finance Agency (“FHFA”) became Freddie Mac’s conservator in 2008). Therefore, we affirm the district court’s dismissal of the Miks’ complaint with respect to this claim. C. Finally, the complaint alleges that Freddie Mac’s conduct was “outrageous and inflicted severe emotional distress upon the [Miks].” The Kentucky Supreme Court recognized the tort of outrageous infliction of emotional distress in Craft v. Rice, 671 S.W.2d 247, 251 (1984). The elements of the claim are: 1. The wrongdoer’s conduct must be intentional or reckless; 2. The conduct must be outrageous and intolerable in that it offends against the generally accepted standards of decency and morality; 3. There must be a causal connection between the wrongdoer’s conduct and the emotional distress; and 4. The emotional distress must be severe. Kroger Co. v. Willgruber, 920 S.W.2d 61, 65 (Ky.1996). “The standards for this tort are strict.” Mineer v. Williams, 82 F.Supp.2d 702, 706 (E.D.Ky.2000). “[A] plaintiff alleges facts sufficient to support a finding of intentional or reckless infliction of emotional distress by alleging that the defendant" } ]

[ { "docid": "3485387", "title": "", "text": "has defined the offense. McMillan v. Pennsylvania, 477 U.S. 79, 85, 106 S.Ct. 2411, 2416, 91 L.Ed.2d 67 (1986). It is a fundamental principle that due process requires the government to prove guilt in a criminal proceeding beyond a reasonable doubt as to each element of an offense. See In re Winship, 397 U.S. 358, 361-64, 90 S.Ct. 1068, 1071-73, 25 L.Ed.2d 368 (1970). A sentencing sanction, however, comes into play only after the defendant has been foimd guilty of an offense beyond a reasonable doubt, and a factor used to determine the sentence does not itself invoke the right to proof beyond a reasonable doubt. See McMillan, 477 U.S. at 86, 106 S.Ct. at 2416; United States v. Galloway, 976 F.2d 414, 425 (8th Cir.1992) (en banc), cert. denied, - U.S. -, 113 S.Ct. 1420, 122 L.Ed.2d 790 (1993). See also United States v. Coleman, 990 F.2d 419, 421 (8th Cir.1993) (prove factual prerequisites to sentence enhancement by a preponderance of the evidence). The language of section 853(a) indicates that Congress intended criminal forfeiture of property to be a punishment and the use of the property to commit or to facilitate a drug trafficking offense to be its factual underpinning, and not a separate offense. Section 853(a) states in part as follows: Any person convicted of a violation of this subchapter or subchapter II of this chapter punishable by imprisonment for more than one year shall forfeit to the United States, irrespective of any provision of State law— (1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation; (2) any of the person’s property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violations; ... The court, in imposing sentences on such person, shall order, in addition to any other sentence imposed pursuant to this sub-chapter or subchapter II of this chapter, that the person forfeit to the United States all property described in this subsection. ... 21 U.S.C. § 853(a). Section 853(a) does not explicitly state" } ]

[ { "docid": "10120513", "title": "", "text": "Criminal Procedure 32.2 does not require a jury determination for forfeiture in the form of a personal money judgment, which is what the government obtained here. Id. at 771. We next address the standard of proof for RICO forfeiture. Forfeiture is an aspect of the séntence, not an element of the underlying crime. Libretti, 516 U.S. at 38-39, 116 S.Ct. 356. Accordingly, a district court or jury need only find facts warranting forfeiture by a preponderance of the evidence. United States v. Shryock, 342 F.3d 948, 991 (9th Cir. 2003) (concluding that “statutorily-prescribed forfeiture is constitutional when supported by the preponderance of the evidence”); see also United States v. Fruchter, 411 F.3d 377, 383 (2d Cir. 2005); United States v. Najjar, 300 F.3d 466, 485-86 (4th Cir. 2002); United States v. DeFries, 129 F.3d 1293, 1312-13 (D.C. Cir. 1997). But see United States v. Cherry, 330 F.3d 658, 669 n. 18 (4th Cir. 2003). Rule 32.2’s Committee Notes also support the preponderance standard for forfeiture. Fed. R. Crim. P. 32.2, Committee Notes (2000) (explaining that “the government must establish the forfeitability of the property by a preponderance of the evidence”). We thus conclude that the district court did not err in using the preponderance of the evidence standard to compute the forfeiture amount. Defendants also argue that the district court improperly calculated the amount to be forfeited. The district court determined that PIA’s gross receipts, rather than its profits, constituted the “proceeds” properly subject to forfeiture under 18 U.S.C. § 1963(a)(3). Accordingly, the court ordered Defendants to forfeit “proved client payments” to Pellicano, which amounted to $2,008,250. Arneson and Turner argue that this was error. Some circuits have held that “proceeds” mean gross receipts. United States v. Simmons, 154 F.3d 765, 770-71 (8th Cir. 1998); DeFries, 129 F.3d at 1313-14; United States v. Hurley, 63 F.3d 1, 21 (1st Cir. 1995). Others have held that “proceeds” refers to net profits. United States v. Genova, 333 F.3d 750, 761 (7th Cir. 2003) (explaining that proceeds in § 1963(a)(3) means “profits net of the costs of the criminal business”). We agree with" }, { "docid": "10774754", "title": "", "text": "insufficient evidence supports its amount. An asset is subject to forfeiture only if the government proves by a preponderance of the evidence such asset is “property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of [a drug crime]” (proceeds prong) or was “used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation” (facilitation prong). 21 U.S.C. § 853; see United States v. Bieri, 21 F.3d 819, 822 (8th Cir.1994) (applying preponderance of the evidence standard). We “review ... factual findings for clear error but apply a de novo standard of review to [the issue] of whether or not those facts render the [asset] subject to forfeiture.” United States v. Dodge Caravan Grand SE/Sport Van, 387 F.3d 758, 761 (8th Cir .2004). United States v. Van Nguyen, 602 F.3d 886, 903 (8th Cir.2010) (alterations in original). If the defendant has insufficient assets at time of sentencing to satisfy the forfeiture order, the court may enter a money judgment against him. United States v. Smith, 656 F.3d 821, 827 (8th Cir.2011) (holding that “[21 U.S.C.] § 853 permits imposition of a money judgment on a defendant who has no assets at the time of sentencing”). “If the government seeks a personal money judgment, the court must determine the amount of money that the defendant will be ordered to pay.” Fed.R.Crim.P. 32.2(b)(1)(A). “The court may make the determination based on evidence in the record, or on additional evidence submitted by the defendant or evidence submitted by the government in support of the motion for the entry of a judgment of forfeiture.” Fed.R.Crim.P. 32.2 advisory committee’s notes to the 2000 amendments. The burden is on the government to prove by a preponderance of the evidence the amount of the proceeds that should be subject to a personal money judgment. Bieri, 21 F.3d at 822. We find no clear error in the district court’s determination that Prather earned $41,600 from his crack cocaine offenses. In December 2008, police found 57.5 grams of crack cocaine, scales, and other" }, { "docid": "19105630", "title": "", "text": "San Francisco Property, collects rent from the tenants, and pays the mortgage. (Tr. 10, 65, 159-61). DISCUSSION AND CONCLUSIONS OF LAW A. General Forfeiture Principles The United States may seek forfeiture of “any property constituting or derived from proceeds obtained directly and indirectly” as a result of a fraud offense. 18 U.S.C. § 982(a)(2)(A). Such forfeitures are governed by 21 U.S.C. § 853 and Federal Rule of Criminal Procedure 32.2, and they are elements of the defendant’s sentence, rather than elements of the underlying crime. Libretti v. United States, 516 U.S. 29, 38, 116 S.Ct. 356, 133 L.Ed.2d 271 (1995); see 18 U.S.C. § 982(b)(1); Fed. R.Crim.P. 32.2. This means that, at the forfeiture phase of the trial, the government need only establish its right to forfeiture by a preponderance of the evidence, the standard applicable at sentencing. See Willis Mgmt., Ltd. v. United States, 652 F.3d 236, 241 (2d Cir.2011). To determine if the government has satisfied its burden, the court may consider the record, any written plea agreements or stipulations, and any additional information submitted by the parties and accepted by the court as relevant and reliable. See Fed.R.Crim.P. 32.2(b)(1)(B); Libretti, 516 U.S. at 43, 116 S.Ct. 356 (observing stipulation of facts and defendant’s agreement to forfeit could satisfy government’s burden). On March 13, 2007, pursuant to 18 U.S.C. § 982(a)(2)(A), I entered a Preliminary Order of Forfeiture/Final Order of Forfeiture for the San Francisco and Grand Cayman Properties as “property constituting or derived from proceeds obtained directly and indirectly” as a result of fraud offenses. (POF 1). In light of Peterson’s Sentencing Stipulation and the substantial evidence in the record, I found that the government established its right to forfeiture under a preponderance of the evidence. (POF 2-4). After the court enters a forfeiture order based on a criminal conviction, third parties may petition the court to adjudicate their interests in the property subject to forfeiture and to amend the forfeiture order. 21 U.S.C. § 853(k), (n); see Pacheco v. Serendensky, 393 F.3d 348, 351-52 (2d Cir.2004). “This proceeding does not involve relitigation of the forfeitability of" }, { "docid": "10774757", "title": "", "text": "deal for himself with police. As this court has stated, “[w]e are highly deferential to a district court’s assessment of witness credibility,” and “district court decisions in this regard are virtually unreviewable on appeal.” United States v. Jones, 628 F.3d 1044, 1047 (8th Cir.2011) (quotation and citation omitted). Furthermore, forfeiture orders can be entered in drug cases regardless of the defendant’s assets at the time of sentencing. Smith, 656 F.3d at 827. “[T]he law does not demand mathematical exactitude in calculating the proceeds subject to forfeiture.” United States v. Roberts, 660 F.3d 149, 166 (2d Cir.2011). “Rather, district courts may use general points of reference as a starting point for a forfeiture calculation and make reasonable extrapolations supported by a preponderance of the evidence.” Id. (quotations and citation omitted); see United States v. Huggins, 392 FedAppx. 50, 63 (3d Cir.2010) (upholding a district court’s determination of a forfeiture amount that was based on statements the defendant made about the amount of cocaine he possessed and law enforcement officers’ statements regarding the price of cocaine at the time of the conspiracy). The district court did not clearly err by finding that Prather earned $41,600 from his crack cocaine offenses. III. Conclusion Accordingly, we affirm the judgment of the district court. . The indictment also included a forfeiture allegation, which sought, pursuant to 21 U.S.C. § 853, \"any property constituting, or derived from, any proceeds obtained, directly or indirectly, as a result of the violations and any property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of such violations.... ” . The Honorable Ortrie D. Smith, United States District Judge for the Western District of Missouri." }, { "docid": "1878863", "title": "", "text": "on the forfeiture amount, that the district court used the incorrect standard of proof in ordering forfeiture, that the district court incorrectly calculated the forfeiture amount, and that liability should not have been joint and several. We disagree with these arguments and affirm. We first address the argument that Defendants had the right to have a jury, decide the forfeiture amount. We review de novo the interpretation of federal forfeiture law. United States v. Newman, 659 F.3d 1235, 1239 n. 2 (9th Cir.2011). We have held that there is no constitutional right to have a jury decide forfeiture. United States v. Phillips, 704 F.3d 754, 769-70 (9th Cir.2012) (citing Libretti v. United States, 516 U.S. 29, 49, 116 S.Ct. 356, 133 L.Ed.2d 271 (1995)). Similarly, we concluded that Federal Rule of Criminal Procedure 32.2 does not require a jury determination for forfeiture in the form of a personal money judgment, which is what the government obtained here. Id. at 771. We next address the standard of proof for RICO forfeiture. Forfeiture is an aspect of the sentence, not an element of the underlying crime. Libretti, 516 U.S. at 38-39, 116 S.Ct. 356. Accordingly, a district court or jury need only find facts warranting forfeiture by a preponderance of the evidence. United States v. Shryock, 342 F.3d 948, 991 (9th Cir.2003) (concluding that “statutorily-prescribed forfeiture is constitutional when supported by the preponderance of the evidence”); see also United States v. Fruchter, 411 F.3d 377, 383 (2d Cir.2005); United States v. Najjar, 300 F.3d 466, 485-86 (4th Cir.2002); United States v. DeFries, 129 F.3d 1293, 1312-13 (D.C.Cir.1997). But see United States v. Cherry, 330 F.3d 658, 669 n. 18 (4th Cir.2003). Rule 32.2’s Committee Notes also support the preponderance standard for forfeiture. Fed.R.Crim.P. 32.2, Committee Notes (2000) (explaining that “the government must establish the forfeitability of the property by a preponderance of the evidence”). We thus conclude that the district court did not err in using the preponderance of the evidence standard to compute the forfeiture amount. Defendants also argue that the district court improperly calculated the amount to be forfeited. The" }, { "docid": "10774755", "title": "", "text": "against him. United States v. Smith, 656 F.3d 821, 827 (8th Cir.2011) (holding that “[21 U.S.C.] § 853 permits imposition of a money judgment on a defendant who has no assets at the time of sentencing”). “If the government seeks a personal money judgment, the court must determine the amount of money that the defendant will be ordered to pay.” Fed.R.Crim.P. 32.2(b)(1)(A). “The court may make the determination based on evidence in the record, or on additional evidence submitted by the defendant or evidence submitted by the government in support of the motion for the entry of a judgment of forfeiture.” Fed.R.Crim.P. 32.2 advisory committee’s notes to the 2000 amendments. The burden is on the government to prove by a preponderance of the evidence the amount of the proceeds that should be subject to a personal money judgment. Bieri, 21 F.3d at 822. We find no clear error in the district court’s determination that Prather earned $41,600 from his crack cocaine offenses. In December 2008, police found 57.5 grams of crack cocaine, scales, and other drug paraphernalia in a hotel room that Prather rented. At that time, Prather told police that he sold crack cocaine out of the hotel room by purchasing two to three ounces each week and breaking it down into $50 rocks for resale. In August 2009, Prather sold $50 worth of crack cocaine to an undercover detective and confidential informant. Prather was arrested with $1,329 on his person. At that time, he told police that he earned approximately $800 for an ounce of crack cocaine and had sold one to two ounces per week for a year and a half, except for the preceding six-month period. When officers arrested Prather the following month, they found approximately $940 in his pocket and recovered 5.53 grams of crack cocaine from his vehicle. Prather disputes the government’s calculation by challenging the credibility of his own previous statement. Prather argues that his August 2009 statement regarding the amount of crack cocaine he sold is not credible because it was made at a time when he was trying to negotiate a" }, { "docid": "19283179", "title": "", "text": "a third party to claim an interest in forfeited property. See, e.g., DSI Assocs. LLC v. United States, 496 F.3d 175, 183 (2d Cir.2007); see also 21 U.S.C. § 853(k) (barring third-parties from intervening in a criminal case). When all ancillary proceedings have concluded, the court must then enter a final forfeiture order “as necessary to account for any third-party rights.” Fed. R. CRIM. P. 32.2(c)(2). If no party files a timely petition or if all claims are denied following a hearing, the preliminary order becomes a final order of forfeiture if the court makes a finding that the defendant has an interest in the property that is forfeitable. Id. When the court enters a final forfeiture order, all third party rights are extinguished. See United States v. Marion, 562 F.3d 1330, 1339 (11th Cir.2009) (“The failure to file a petition within this thirty-day time period extinguishes a third party’s interests.”) (citation omitted); see also 21 U.S.C. § 853(n)(7); Fed. R. CRim. P. 32.2(c)(2). However, the Government may move to amend the forfeiture order to include either subsequently located forfeitable property or substitute property. Fed. R. CRim. P. 32.2(e)(1). [12] Pursuant to the “relation-back” doctrine, “[a]ll right, title, and interest in [property subject to criminal forfeiture] vests in the United States upon the commission of the act giving rise to forfeiture under this section.” 21 U.S.C. § 853(c). Under the “relation-back” doctrine, the Government’s interest in forfeitable property vests as of the moment when the criminal conduct occurred. See United States v. Parcel of Land, Bldgs., Appurtenances and Improvements, known as 92 Buena Vista Ave., Rumson, N.J., 507 U.S. 111, 125, 113 S.Ct. 1126, 122 L.Ed.2d 469 (1993) (“Under the relation back doctrine, a decree of forfeiture had the effect of vesting title to the offending res in the Government as of the date of its offending conduct.”); United States v. Timley, 507 F.3d 1125, 1130 (8th Cir.2007) (“[T]he proceeds of an offense do not exist before the offense is committed, and when they come into existence, the government’s interest under the relation-back doctrine immediately vests.”) (citation omitted); United States" }, { "docid": "23367455", "title": "", "text": "financial in nature and was therefore reasonably foreseeable to the defendant as part of a ponzi scheme, where the defendant played an extensive role in the scheme); see also United States v. Sells, 541 F.3d 1227, 1235 (10th Cir.2008); United States v. Osborne, 332 F.3d 1307, 1311 (10th Cir.2003); United States v. Tagore, 158 F.3d 1124, 1128-30 (10th Cir.1998); United States v. McFarlane, 933 F.2d 898, 899 (10th Cir. 1991). For these reasons, we reject Mr. Gordon’s joint-and-several argument. G. Final Order of Forfeiture Mr. Gordon lastly argues that the district court failed to follow the dictates of 21 U.S.C. § 853(p) in issuing a final forfeiture order. “[W]e review the district court’s forfeiture order as we would any other sentencing determination — that is, we review its legal conclusions de novo and its factual findings for clear error.” United States v. Bader, 678 F.3d 858, 893 (10th Cir.2012); see Libretti v. United States, 516 U.S. 29, 38-39, 116 S.Ct. 356, 133 L.Ed.2d 271 (1995) (“Forfeiture is an element of the sentence imposed following conviction.... ” (emphasis omitted)). “A forfeiture judgment must be supported by a preponderance of the evidence.” Bader, 678 F.3d at 893. On January 11, 2011, upon the government’s motion, the district court ordered the forfeiture of various interests Mr. Gordon held in real property and financial instruments as “substitute property” pursuant to Federal Rule of Criminal Procedure 32.2 and 21 U.S.C. § 853(p). The order was entered subsequent to the district court’s entry of a joint and several money judgment in the amount of $2,747,761.81, individually against Mr. Gordon for the IPG wire fraud scheme, and $43,927,809.95 representing proceeds traceable to the criminal acts at issue. Rule 32.2(e)(1)(B) authorizes the government to move for an order of forfeiture, or to “amend an existing order,” to include property that “is substitute property that qualifies for forfeiture under an applicable statute.” As relevant here, the criminal forfeiture statute provides that a defendant’s substitute property may be forfeited where, as a result of an act or omission of the defendant [the forfeited property] — (A) cannot be located upon" }, { "docid": "18127570", "title": "", "text": "Fed. R. Crim. P. 32.2(b)(1)(A). Then, “[i]f the court finds that property is subject to forfeiture, it must promptly enter a preliminary order of forfeiture setting forth the amount of any money judgment, directing the forfeiture of specific property, and directing the forfeiture of any substitute property if the government has met the statutory criteria.” Fed. R. Crim. P. 32.2(b)(2)(A). “Unless doing so is impractical, the court must enter the preliminary order sufficiently in advance of sentencing to allow the parties to suggest revisions or modifications before the order becomes final .... ” Fed. R. Crim. P. 32.2(b)(2)(B). The preliminary forfeiture order becomes final as to the defendant “[a]t sentencing — or at any time before sentencing if the defendant consents.” Fed. R. Crim. P. 32.2(b)(4)(A). Here, the district court erred by failing to enter a preliminary forfeiture order after the jury rendered its verdict and before the sentencing hearing. See United States v. Marion, 562 F.3d 1330, 1339 (11th Cir. 2009) (“The Federal Rules of Criminal Procedure have the force and effect of law. Just as a statute, the requirements promulgated in these Rules must be obeyed.” (quotation omitted)). Notably, there is nothing in the record, and the government has pointed us to nothing, that would have rendered doing so impractical. See Fed. R. Crim. P. 32.2(b)(2)(B). But harmless-error analysis clearly applies to the examination of this issue. See Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded”); United States v. Martin, 662 F.3d 301, 307-10 (4th Cir. 2011) (affirming forfeiture order, despite district court’s failure to enter a preliminary order prior to the sentencing hearing and to make the order final at sentencing, as required by Fed. R. Crim. P. 32.2 (2004), where the defendants had notice both of the pending forfeiture and the amount sought by the government). The record unambiguously establishes that Farias had fair notice prior to the sentencing hearing that the government would seek forfeiture. For one thing, both the original and superseding indictments contained a forfeiture count. See Fed. R. Crim. P." }, { "docid": "18127569", "title": "", "text": "See McKinley, 995 F.2d at 1025. D. Lastly, Farias argues that the district court erred by failing to enter a preliminary forfeiture order after the jury rendered its verdict and before the sentencing hearing. We agree that the district court erred, but conclude after carefully reviewing the record that the error was harmless. Fed. R. Crim. P. 32.2 sets out three required steps in criminal forfeiture proceedings. First, the “court must not enter a judgment of forfeiture ... unless the indictment or information contains notice to the defendant that the government will seek the forfeiture of property as part of any sentence in accordance with the applicable statute.” Fed. R. Crim. P. 32.2(a). Second, “[a]s soon as practical after a verdict or finding of guilty ... on any count in an indictment or information regarding which criminal forfeiture is sought, the court must determine what property is subject to forfeiture,” and, “[i]f the government seeks a personal money judgment, the court must determine the amount of money that the defendant will be ordered to pay.” Fed. R. Crim. P. 32.2(b)(1)(A). Then, “[i]f the court finds that property is subject to forfeiture, it must promptly enter a preliminary order of forfeiture setting forth the amount of any money judgment, directing the forfeiture of specific property, and directing the forfeiture of any substitute property if the government has met the statutory criteria.” Fed. R. Crim. P. 32.2(b)(2)(A). “Unless doing so is impractical, the court must enter the preliminary order sufficiently in advance of sentencing to allow the parties to suggest revisions or modifications before the order becomes final .... ” Fed. R. Crim. P. 32.2(b)(2)(B). The preliminary forfeiture order becomes final as to the defendant “[a]t sentencing — or at any time before sentencing if the defendant consents.” Fed. R. Crim. P. 32.2(b)(4)(A). Here, the district court erred by failing to enter a preliminary forfeiture order after the jury rendered its verdict and before the sentencing hearing. See United States v. Marion, 562 F.3d 1330, 1339 (11th Cir. 2009) (“The Federal Rules of Criminal Procedure have the force and effect of law." }, { "docid": "23367456", "title": "", "text": "” (emphasis omitted)). “A forfeiture judgment must be supported by a preponderance of the evidence.” Bader, 678 F.3d at 893. On January 11, 2011, upon the government’s motion, the district court ordered the forfeiture of various interests Mr. Gordon held in real property and financial instruments as “substitute property” pursuant to Federal Rule of Criminal Procedure 32.2 and 21 U.S.C. § 853(p). The order was entered subsequent to the district court’s entry of a joint and several money judgment in the amount of $2,747,761.81, individually against Mr. Gordon for the IPG wire fraud scheme, and $43,927,809.95 representing proceeds traceable to the criminal acts at issue. Rule 32.2(e)(1)(B) authorizes the government to move for an order of forfeiture, or to “amend an existing order,” to include property that “is substitute property that qualifies for forfeiture under an applicable statute.” As relevant here, the criminal forfeiture statute provides that a defendant’s substitute property may be forfeited where, as a result of an act or omission of the defendant [the forfeited property] — (A) cannot be located upon the exercise of due diligence; (B) has been transferred or sold to, or deposited with, a third party; (C) has been placed beyond the jurisdiction of the court; (D) has been substantially diminished in value; or (E) has been commingled with other property which cannot be divided without difficulty. 21 U.S.C. § 853(p)(1)(A) — (E). Forfeiture “shall” be ordered “up to the value of any property described.” Id. § 853(p)(2). In support of its second motion for forfeiture, the government offered the affidavit of Litigation Financial Analyst William Robert Taylor, who averred that he had conducted a full financial investigation of Mr. Gordon’s business and personal accounts. Section 853(p)(l), by its express terms, permits the forfeiture of substitute assets, when directly traceable assets cannot be located despite the exercise of due diligence, because of an act or omission of the defendant. See, e.g., Bornfield, 145 F.3d at 1139 (“The substitute assets provision allows the forfeiture of other assets not already forfeitable when the forfeitable asset is unavailable due to some act or omission of the" }, { "docid": "20452087", "title": "", "text": "plain error, in the application of a § 3B1.3 enhancement to his Guidelines calculation based on his abuse of the position of trust he held at American Airlines. Accordingly, we identify no procedural error in his sentence. C. Challenge to Forfeiture Calculation Roberts challenges the $3,160,000 forfeiture order in his case, asserting that the record evidence does not support a finding that the conspiracy obtained this amount in proceeds from its drug trafficking activities. The district court arrived at the challenged amount by finding that the conspiracy smuggled at least seventy-nine kilograms (ie., 79,000 grams) of cocaine into the United States and then multiplying that weight by its estimated street value of $40 per gram. We review the district court’s factual findings regarding forfeiture for clear error and its legal conclusions de novo. See United States v. Sabhnani, 599 F.3d 215, 261 (2d Cir.2010), cert. denied, — U.S. -, -, 131 S.Ct. 1000, 178 L.Ed.2d 854, 855 (2011). Title 21 U.S.C. § 853(a)(1) states that a defendant convicted of a drug crime “shall forfeit ... any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of’ the crime of conviction. In the case of a narcotics conspiracy, this mandatory liability is joint and several among all conspirators. See United States v. Benevento, 836 F.2d 129, 130 (2d Cir.1988); cf. United States v. Fruchter, 411 F.3d 377, 384 (2d Cir.2005) (applying joint and several liability for criminal proceeds from racketeering enterprise). The procedures applicable to a forfeiture determination are detailed in Fed.R.Crim.P. 32.2. The government’s burden of proof with respect to forfeiture is a preponderance of the evidence. See United States v. Kalish, 626 F.3d 165, 168 (2d Cir.2010). In this case, the government sought to carry its burden by proving the quantity of cocaine dealt by the conspiracy and then urging that the amount be multiplied by the price it could have com manded. We identify no error in the district court’s use of this approach. See United States v. Treacy, 639 F.3d 32, 47-48 (2d Cir.2011) (stating that district court’s forfeiture calculations" }, { "docid": "19748613", "title": "", "text": "the order should not have been issued in the first place. He also argues that it would be too late now for the government to try to seek any substitute assets, since he was given no notice in the indictment of an intent to do so. As to his first point, we have said that [a] money judgment permits the government to collect on the forfeiture order in the same way that a successful plaintiff collects a money judgment from a civil defendant. Thus, even if a defendant does not have sufficient funds to cover the forfeiture at the time of the conviction, the government may seize future assets to satisfy the order. United States v. Hall, 434 F.3d 42, 59 (1st Cir.2006); see United States v. Candelaria-Silva, 166 F.3d 19, 42 (1st Cir.1999) (“[Criminal forfeiture may take several forms [including] an in personam judgment against the defendant for the amount of money the defendant obtained as proceeds of the offense”). Here, the government sought a forfeiture judgment under Rule 32.2, which provides that “[i]f the government seeks a personal money judgment, the court must determine the amount of money that the defendant will be ordered to pay.” Fed.R.Crim.P. 32.2(b)(1). This is in contrast to where the government seeks forfeiture of “specific property,” in which case the government has to show a “nexus between the property and the offense.” Id. Misla is mistaken, therefore, in arguing that a forfeiture order can apply only to the specific proceeds of the offense. If the government seeks, and the court grants, a money judgment as part of the forfeiture order, then “the government need not prove that the defendant actually has the forfeited proceeds in his possession at the time of conviction.” Hall, 434 F.3d at 59. If the government has proven that there was at one point an amount of cash that was directly traceable to the offense, and that thus would be forfeitable under 18 U.S.C. § 982(a), that is sufficient for a court to issue a money judgment, for which the defendant will be fully liable whether or not he" }, { "docid": "1878864", "title": "", "text": "the sentence, not an element of the underlying crime. Libretti, 516 U.S. at 38-39, 116 S.Ct. 356. Accordingly, a district court or jury need only find facts warranting forfeiture by a preponderance of the evidence. United States v. Shryock, 342 F.3d 948, 991 (9th Cir.2003) (concluding that “statutorily-prescribed forfeiture is constitutional when supported by the preponderance of the evidence”); see also United States v. Fruchter, 411 F.3d 377, 383 (2d Cir.2005); United States v. Najjar, 300 F.3d 466, 485-86 (4th Cir.2002); United States v. DeFries, 129 F.3d 1293, 1312-13 (D.C.Cir.1997). But see United States v. Cherry, 330 F.3d 658, 669 n. 18 (4th Cir.2003). Rule 32.2’s Committee Notes also support the preponderance standard for forfeiture. Fed.R.Crim.P. 32.2, Committee Notes (2000) (explaining that “the government must establish the forfeitability of the property by a preponderance of the evidence”). We thus conclude that the district court did not err in using the preponderance of the evidence standard to compute the forfeiture amount. Defendants also argue that the district court improperly calculated the amount to be forfeited. The district court determined that PIA’s gross receipts, rather than its profits, constituted the “proceeds” properly subject to forfeiture under 18 U.S.C. § 1963(a)(3). Accordingly, the court ordered Defendants to forfeit “proved client payments” to Pellicano, which amounted to $2,008,250. Arneson and Turner argue that this was error. Some circuits have held that “proceeds” mean gross receipts. United States v. Simmons, 154 F.3d 765, 770-71 (8th Cir.1998); DeFries, 129 F.3d at 1313-14; United States v. Hurley, 63 F.3d 1, 21 (1st Cir.1995). Others have held that “proceeds” refers to net profits. United States v. Genova, 333 F.3d 750, 761 (7th Cir.2003) (explaining that proceeds in § 1963(a)(3) means “profits net of the costs of the criminal business”). We agree with the view that “proceeds” in the RICO forfeiture statute refers to gross receipts rather than net profits. As the Eighth Circuit explained: The legislative history of the 1984 amendments to RICO states that “the term ‘proceeds’ has been used in lieu of the term ‘profits’ in order to alleviate the unreasonable burden on the government of" }, { "docid": "10774756", "title": "", "text": "drug paraphernalia in a hotel room that Prather rented. At that time, Prather told police that he sold crack cocaine out of the hotel room by purchasing two to three ounces each week and breaking it down into $50 rocks for resale. In August 2009, Prather sold $50 worth of crack cocaine to an undercover detective and confidential informant. Prather was arrested with $1,329 on his person. At that time, he told police that he earned approximately $800 for an ounce of crack cocaine and had sold one to two ounces per week for a year and a half, except for the preceding six-month period. When officers arrested Prather the following month, they found approximately $940 in his pocket and recovered 5.53 grams of crack cocaine from his vehicle. Prather disputes the government’s calculation by challenging the credibility of his own previous statement. Prather argues that his August 2009 statement regarding the amount of crack cocaine he sold is not credible because it was made at a time when he was trying to negotiate a deal for himself with police. As this court has stated, “[w]e are highly deferential to a district court’s assessment of witness credibility,” and “district court decisions in this regard are virtually unreviewable on appeal.” United States v. Jones, 628 F.3d 1044, 1047 (8th Cir.2011) (quotation and citation omitted). Furthermore, forfeiture orders can be entered in drug cases regardless of the defendant’s assets at the time of sentencing. Smith, 656 F.3d at 827. “[T]he law does not demand mathematical exactitude in calculating the proceeds subject to forfeiture.” United States v. Roberts, 660 F.3d 149, 166 (2d Cir.2011). “Rather, district courts may use general points of reference as a starting point for a forfeiture calculation and make reasonable extrapolations supported by a preponderance of the evidence.” Id. (quotations and citation omitted); see United States v. Huggins, 392 FedAppx. 50, 63 (3d Cir.2010) (upholding a district court’s determination of a forfeiture amount that was based on statements the defendant made about the amount of cocaine he possessed and law enforcement officers’ statements regarding the price of cocaine at" }, { "docid": "16470934", "title": "", "text": "from his criminal activity. See 21 U.S.C. § 853(d). Alternatively, the district court found that the Thailand condos could be forfeited as substitute assets in partial satisfaction of the $100 million judgment, pursuant to 21 U.S.C. § 853(p). Duboc appeals pro se. Duboc argues that the district court erred by amending the forfeiture order because (1) the Thailand condos were not purchased with proceeds from drug shipments into the United States, and collateral estoppel does not bar him from litigating issues decided in his earlier criminal proceeding; (2) the amendment to the forfeiture order was barred by the statute of limitations or the doctrine of laches; (3) Duboc’s due process rights were violated by the 11-year delay between Thailand’s 2000 restraint of the Thailand condos and the government’s 2011 motion to amend the forfeiture order; and (4) the MLAT between Thailand and the United States renders void the district court’s amended order with respect to the Thailand condos. We review these issues in turn. II. DISCUSSION A. Forfeiture Order Amendment Under 21 U.S.C. § 853(a)(1), anyone convicted of violating, inter alia, 21 U.S.C. §§ 952, 960(b)(1)(G), and 963 shall forfeit “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation.” Federal Rule of Criminal Procedure 32.2 requires the district court to determine what property is subject to forfeiture, and, if the government identifies specific property, whether the government has established the requisite nexus between the property and the offense. Fed.R.Crim.P. 32.2(b)(1)(A). The district court may amend a forfeiture order at any time. Fed.R.Crim.P. 32.2(e)(1) (stating that the district court may “at any time enter an order of forfeiture or amend an existing order of forfeiture”). In addition, 21 U.S.C. § 853(d) establishes a rebuttable presumption that any property of the defendant is subject to forfeiture if the government establishes by a preponderance of the evidence that (1) the defendant acquired the property during the time of, or within a reasonable time after, the criminal activity, and (2) there was no likely source for the property other than the criminal activity." }, { "docid": "18127571", "title": "", "text": "Just as a statute, the requirements promulgated in these Rules must be obeyed.” (quotation omitted)). Notably, there is nothing in the record, and the government has pointed us to nothing, that would have rendered doing so impractical. See Fed. R. Crim. P. 32.2(b)(2)(B). But harmless-error analysis clearly applies to the examination of this issue. See Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded”); United States v. Martin, 662 F.3d 301, 307-10 (4th Cir. 2011) (affirming forfeiture order, despite district court’s failure to enter a preliminary order prior to the sentencing hearing and to make the order final at sentencing, as required by Fed. R. Crim. P. 32.2 (2004), where the defendants had notice both of the pending forfeiture and the amount sought by the government). The record unambiguously establishes that Farias had fair notice prior to the sentencing hearing that the government would seek forfeiture. For one thing, both the original and superseding indictments contained a forfeiture count. See Fed. R. Crim. P. 32.2(a). Thus, the superseding indictment contained the following clause: Upon conviction of a conspiracy to commit a violation of Title 18, United States Code, Sections 2314 and 2342, as alleged in this Superseding Indictment, the defendant so convicted shall forfeit to the United States of America all of his respective right, title and interest in any property, real or personal, which constitutes or is derived from proceeds traceable to such violation, pursuant to Title 18, United States Code, Section 981(a)(1)(C). Second, the government confirmed its intent to seek forfeiture at trial, when, in response to the court’s inquiry whether there were any forfeiture issues for the jury, the government noted that it would be seeking a “monetary judgment on the amount of the profit,” which the parties agreed was not a jury issue. What’s more, at sentencing, both the government and defense counsel indicated that the parties had actually been negotiating the amount of the forfeiture prior to the sentencing hearing. Farias also had notice of the specific amount ordered forfeited. At the trial, an" }, { "docid": "19105631", "title": "", "text": "information submitted by the parties and accepted by the court as relevant and reliable. See Fed.R.Crim.P. 32.2(b)(1)(B); Libretti, 516 U.S. at 43, 116 S.Ct. 356 (observing stipulation of facts and defendant’s agreement to forfeit could satisfy government’s burden). On March 13, 2007, pursuant to 18 U.S.C. § 982(a)(2)(A), I entered a Preliminary Order of Forfeiture/Final Order of Forfeiture for the San Francisco and Grand Cayman Properties as “property constituting or derived from proceeds obtained directly and indirectly” as a result of fraud offenses. (POF 1). In light of Peterson’s Sentencing Stipulation and the substantial evidence in the record, I found that the government established its right to forfeiture under a preponderance of the evidence. (POF 2-4). After the court enters a forfeiture order based on a criminal conviction, third parties may petition the court to adjudicate their interests in the property subject to forfeiture and to amend the forfeiture order. 21 U.S.C. § 853(k), (n); see Pacheco v. Serendensky, 393 F.3d 348, 351-52 (2d Cir.2004). “This proceeding does not involve relitigation of the forfeitability of the property; its only purpose is to determine whether any third party has a legal interest in the forfeited property.” Fed. R.Crim.P. 32.2, Advisory Committee Note (b) (2000); see also United States v. Andrews, 530 F.3d 1232, 1236-37 (10th Cir.2008); United States v. Porchay, 533 F.3d 704, 710 (8th Cir.2008). To prevail under § 853(n), a third party must establish, by a preponderance of the evidence, or, with respect to a “Marvin claim,” as discussed below, by clear and convincing evidence, that either: (1) he is a bona fide purchaser for value of the properties, 21 U.S.C. § 853(n)(6)(B); or (2) he has a legal interest in the properties that “renders the order of forfeiture invalid in whole or in part because the right, title, or interested was vested in [him] rather than the defendant or was superior to any right, title, or interest of the defendant at the time of the commission of the acts” giving rise to the forfeiture, 21 U.S.C. § 853(n)(6)(A). Pursuant to 21 U.S.C. § 853(n)(6)(A), Crew argues that the" }, { "docid": "10120512", "title": "", "text": "offense “shall forfeit to the United States ... any property constituting, or derived from, any proceeds which the person obtained, directly or indirectly, from racketeering activity....” 18 U.S.C. § 1963(a)(3). Defendants argue that they had a right to a jury trial on the forfeiture amount, that the district court used the incorrect standard of proof in ordering forfeiture, that the district court incorrectly calculated the forfeiture amount, and that liability should not have been joint and several. We disagree with these arguments and affirm. We first address the argument that Defendants had the right to have a jury decide the forfeiture amount. We review de novo the interpretation of federal forfeiture law. United States v. Newman, 659 F.3d 1235, 1239 n. 2 (9th Cir. 2011). We have held that there is no constitution al right to have a jury decide forfeiture. United States v. Phillips, 704 F.3d 754, 769-70 (9th Cir. 2012) (citing Libretti v. United States, 516 U.S. 29, 49, 116 S.Ct. 356, 133 L.Ed.2d 271 (1995)). Similarly, we concluded that Federal Rule of Criminal Procedure 32.2 does not require a jury determination for forfeiture in the form of a personal money judgment, which is what the government obtained here. Id. at 771. We next address the standard of proof for RICO forfeiture. Forfeiture is an aspect of the séntence, not an element of the underlying crime. Libretti, 516 U.S. at 38-39, 116 S.Ct. 356. Accordingly, a district court or jury need only find facts warranting forfeiture by a preponderance of the evidence. United States v. Shryock, 342 F.3d 948, 991 (9th Cir. 2003) (concluding that “statutorily-prescribed forfeiture is constitutional when supported by the preponderance of the evidence”); see also United States v. Fruchter, 411 F.3d 377, 383 (2d Cir. 2005); United States v. Najjar, 300 F.3d 466, 485-86 (4th Cir. 2002); United States v. DeFries, 129 F.3d 1293, 1312-13 (D.C. Cir. 1997). But see United States v. Cherry, 330 F.3d 658, 669 n. 18 (4th Cir. 2003). Rule 32.2’s Committee Notes also support the preponderance standard for forfeiture. Fed. R. Crim. P. 32.2, Committee Notes (2000) (explaining that" }, { "docid": "10774753", "title": "", "text": "78 weeks or a year and a half. Mr. Prather says he may have sold an ounce a week for that period of time but there was a Six-month period [in] which he didn’t.... I think that if I’m going to accept his statement that he said he sold an ounce or two ounces of crack cocaine a week, I’m also obligated to accept his statement that he didn’t sell for a six-month period. The district court found that Prather sold crack cocaine for 52 weeks and profited in the amount of $800 per week. The court sentenced Prather to 188 months’ imprisonment, followed by five years of supervised release. The court ordered the forfeiture of $1,829 in United States currency seized from Prather on August 27, 2009, and the 2000 Lincoln Navigator. The court also entered a personal money judgment against Prather in the amount of $41,600 based on his testimony regarding his cocaine sales. II. Discussion Prather’s sole argument on appeal is that we should vacate the personal money judgment against him because insufficient evidence supports its amount. An asset is subject to forfeiture only if the government proves by a preponderance of the evidence such asset is “property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of [a drug crime]” (proceeds prong) or was “used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation” (facilitation prong). 21 U.S.C. § 853; see United States v. Bieri, 21 F.3d 819, 822 (8th Cir.1994) (applying preponderance of the evidence standard). We “review ... factual findings for clear error but apply a de novo standard of review to [the issue] of whether or not those facts render the [asset] subject to forfeiture.” United States v. Dodge Caravan Grand SE/Sport Van, 387 F.3d 758, 761 (8th Cir .2004). United States v. Van Nguyen, 602 F.3d 886, 903 (8th Cir.2010) (alterations in original). If the defendant has insufficient assets at time of sentencing to satisfy the forfeiture order, the court may enter a money judgment" } ]

[ { "docid": "590874", "title": "", "text": "barred by the statute of limitations. Section 1311(b) (2) (B) requires no more on the part of the taxpayer. Indeed, if taxpayer had claimed a capital loss in 1944, this suit would not be before us now. The Government urges that the specific provisions describing the circumstances and conditions of adjustment are to be construed literally and may not be extended by implication. We have been cited to no cases construing the specific provisions of the 1954 Code here involved. We agree, however, with the Court of Appeals for the Eighth Circuit when it said with reference to Section 3801 of the 1939 Code comparable to Sections 1311-1315 of the 1954 Code, that: “It is, no doubt, true that one claiming the benefits of Section 3801 must assume the burden of proving the existence of the prerequisites to its applicability. (Citations omitted.) That, however, does not mean that the statute should be so strictly or narrowly interpreted as to defeat its apparent purpose, which it has been said was ‘to provide a fair and workable formula under which taxpayers and the Government would be given relief from the unfair and unjust results occasioned by corrections, by final determinations of errors of either the taxpayer or the Commissioner of Internal Revenue, or both, in connection with proper treatment of items affecting taxable income and tax liability in more than one year.’ ” United States v. Rosenberger, 1956, 8 Cir., 235 F.2d 69, 73. See also Gooch Milling & Elevator Co. v United States, 1948, 78 F.Supp. 94, 111 Ct.Cl. 576. We hold that the taxpayer has demonstrated that it meets the specific conditions and circumstances of Sections 1311(b) (2) (B) and 1312(4) and that it is entitled, therefore, to have the statute of limitations mitigated in its favor. The judgment of the district court is Affirmed. . A “determination” is defined as “a decision by the Tax Court or a judgment, decree, or other order by any court of competent jurisdiction, which has become final * * *.” 26 U.S.C.A. § 1313(a) (1)." } ]

[ { "docid": "14499935", "title": "", "text": "have justified such modification by active inconsistency * * [Emphasis supplied.] S. Rep. No. 1567, 75th Cong., 3d Sess. 49 (1938). The following comment of the Harvard Law Review is also relevant to our conclusion that maintaining a position under the mitigation provisions means actively urging the adoption of a position: * * * [Corrections under the mitigation provisions] are purely compensatory in that they balance a correct result obtained by an active party in an open year with a correction of an error for the benefit of the passive party for the closed year. * * * [Emphasis supplied.] Sections 1311-15 of the Internal Revenue Code: Some Problems in Administration, 72 Harv. L. Rev. 1536,1541 (1958-59). This interpretation of the inconsistent position requirement is in full accord with the recognized purpose of the mitigation provisions. The Senate Report amply demonstrates that the mitigation provisions were enacted primarily to pre vent either the Commissioner or the taxpayer from gaining the advantage of double taxation or double tax avoidance by the offensive use of the statute of limitations. Particularly pertinent is the following language of the Senate Report: * * * [U]nder existing law, an unfair benefit * * * [can] be obtained by assuming an inconsistent position and then taking shelter behind the protective barrier of the statute of limitations. * * * [The statute of limitations] was never intended to sanction active exploitation, by the beneficiary of the statutory bar, of opportunities only open to him if he assumes a position diametrically opposed to that taken prior to the running of the statute. * * * Legislation has long been needed to * * * check the growing volume of litigation by taking the profit out of inconsistency * * *. [S. Rep. No. 1567, 75th Cong., 3d Sess. 49 (1938).] Thus, the inequity which the mitigation provisions were intended to rectify only exists where a party attempts to exploit the statute of limitations by taking the initiative and actively assuming a position inconsistent with the treatment of the same item in a prior year closed by the statute" }, { "docid": "18709662", "title": "", "text": "76 T.C. 209, 214-217 (1981), affd. 810 F.2d 209 (D.C. Cir. 1987). Taylor v. Commissioner, 67 T.C. 1071, 1077-1078 (1977). Estate of Gardner v. Commissioner, 82 T.C. 989 (1984). Southern Pacific Transportation Co. v. Commissioner, 75 T.C. 497, 840 (1980). Rojas v. Commissioner, 90 T.C. 1090 (1988), on appeal (9th Cir., Dec. 9, 1988). Our Memorandum Opinion did not discuss judicial estoppel. Reynolds v. Commissioner, T.C. Memo. 1987-261. The Fifth Circuit has also recently held that the equitable principle of “quasi estoppel” or the “duty of consistency” applies in the Tax Court. Herrington v. Commissioner, 854 F.2d 755 (5th Cir. 1988), affg. Glass v. Commissioner, 87 T.C. 1087 (1986). The Supreme Court was referring to sec. 272(g) of the Revenue Act of 1934, 48 Stat. 680, now embodied in sec. 6214(b) of the Code. The Senate Committee report stated: In each case, under existing law, an unfair benefit would have been obtained by assuming an inconsistent position and then taking shelter behind the protective barrier of the statute of limitations. Such resort to the statute of limitations is a plain misuse of its fundamental purpose. The purpose 'of the statute of limitations to prevent the litigation of stale claims is fully recognized and approved. But it was never intended to sanction active exploitation, by the beneficiary of the statutory bar, of opportunities only open to him if he assumes a position diametrically opposed to that taken prior to the running of the statute. The Federal courts in many somewhat similar tax cases have sought to prevent inequitable results by applying principles variously designated as estoppel, quasi-estoppel, recoupment, and set-off. For various reasons, mostly technical, these judicial efforts cannot extend to all problems of this type. Nor can they provide a uniform, systematic solution of these problems. Legislation has long been needed to supplement the equitable principles applied by the courts and to check the growing volume of litigation by taking the profit out of inconsistency, whether exhibited by taxpayers or revenue officials and whether fortuitous or the result of design. [S. Rept. 1567, 75th Cong., 3d Sess. (1938), 1939-1 C.B." }, { "docid": "14848145", "title": "", "text": "trusts and Lena would have been prevented, absent Sections 1311-1314, by operation of the statute of limitations. Proceeding under these mitigation of limitations provisions, the Commissioner sent statutory notices of deficiency to the petitioners on June 5, 1959. Liability as partners is asserted against Lena (for 1945) and the trusts. Liability as transferees is asserted against Lena (for 1944) and Blaine. I. Prior to the Revenue Act of 1938 a double advantage could accrue to the Commissioner or to a taxpayer who successfully maintained as to the treatment of a particular item in an open year a position inconsistent with an erroneous treatment of the same item in another year that could not be reopened because of the statute of limitations or some other rule of finality. In some cases the courts mitigated the resulting inequities through the application of the doctrines of estoppel or recoupment, but such decisions were neither uniform nor systematic. See S.Rep.No.1567, 75th Cong., 3d Sess. 49 (1938), 1939-1 (Part 2) Cum.Bull. 779, 815 (1939). Section 820 of the 1938 Code which became Section 3801 of the 1939 Code and Sections 1311-1314 of the 1954 Code supplied more definitive guideposts for dealing with such situations. Sections 1311-1314 list certain “circumstances of adjustment,” such as the double inclusion or exclusion of an item of gross income or the double allowance or disallowance of a deduction, and provide in general that for one year from the date of the final determination resulting in such a situation the closed year may be reopened as against the party who maintained the position adopted by the determination. The parties are in agreement (that this case satisfies the requirements set forth in section 1311(a), which states the general rule for the mitigation of the statute of limitations: “(a) General rule. — If [1] a determination (as defined in section 1313) is [2], described in one or more of the paragraphs of section 1312 and, [3] on the date of the determination, correction of the effect of the error referred to in the applicable paragraph of section 1312 is prevented by the operation" }, { "docid": "14499934", "title": "", "text": "167 Ct. Cl. 280, 292, 335 F. 2d 454, 461 (1964), cert. denied, 379 U.S. 964 (1965): * * * [T]be requirement of section 1311(b)(1) is that tbe determination adopt a position inconsistent with the error and that this position must have been actively maintained by the party seeking to interpose the bar of the statute of limitations. [Footnotes omitted.] * * * See also Commissioner v. Weinreich's Estate, 316 F. 2d 97, 105 (9th Cir. 1963), which held that the mitigation provisions only apply in the case of “active inconsistency” by the party pleading the bar of the statute of limitations. The legislative history of the bill enacting the mitigation sections confirms the fact that the statute requires active urging of a position by a party when it speaks of a “position maintained by” a party. The Senate Report noted that adjustments under the mitigation sections would never modify the application of the statute of limitations “except when the party or parties in whose favor * * * [the statute of limitations] applies shall have justified such modification by active inconsistency * * [Emphasis supplied.] S. Rep. No. 1567, 75th Cong., 3d Sess. 49 (1938). The following comment of the Harvard Law Review is also relevant to our conclusion that maintaining a position under the mitigation provisions means actively urging the adoption of a position: * * * [Corrections under the mitigation provisions] are purely compensatory in that they balance a correct result obtained by an active party in an open year with a correction of an error for the benefit of the passive party for the closed year. * * * [Emphasis supplied.] Sections 1311-15 of the Internal Revenue Code: Some Problems in Administration, 72 Harv. L. Rev. 1536,1541 (1958-59). This interpretation of the inconsistent position requirement is in full accord with the recognized purpose of the mitigation provisions. The Senate Report amply demonstrates that the mitigation provisions were enacted primarily to pre vent either the Commissioner or the taxpayer from gaining the advantage of double taxation or double tax avoidance by the offensive use of the statute" }, { "docid": "14848151", "title": "", "text": "claims is fully recognized and approved. But it was never intended to sanction active exploitation, by the beneficiary of the statutory bar, of opportunities only open to him if he assumes a position diametrically opposed to that taken prior to the running of the statute * * * The legislation here proposed is based upon the following principles: (1) to preserve unimpaired the essential function of the statute of limitations, corrective adjustments should (a) never modify the application of the statute except when the party or parties in whose favor it applies shall have justified such modification by active inconsistency * * S.Rep.No.1567, 75th Cong., 3d Sess. 49-50 (1938), 1939-1 (Part 2) Cum.Bull. 779, 815 (1939). See Commissioner v. Estate of Weinrich, 316 F.2d 97, 105 (9th Cir. 1963). In the present case, the argument continues, the taxpayers have not actively sought to exploit the statute of limitations. The taxpayers note that the original returns of Gus and the other taxpayers were consistent with each other and correct and that the Commissioner was advised to protect the government’s position against the trusts, Lena, and Elaine at the time the estate made its claim for a refund. But for the Commissioner’s erroneous determination that the trusts were not bona fide partners and the subsequent failure to protect the government’s position before the statute of limitations had run, the present litigation need never have arisen. Taxpayers conclude that it is inequitable to remove the statutory bar as against them, when the difficulty was created by the actions of the government. Taxpayer’s argument, however, misconceives the nature of the mitigation of limitation provisions, which are remedial, riot punitive. Cory v. Commissioner, 261 F.2d 702, 704 (2d Cir. 1958), cert. denied, 359 U.S. 966, 79 S.Ct. 877, 3 L.Ed.2d 834 (1959); Olin Mathieson Chem. Corp. v. United States, 265 F.2d 293 (7th Cir. 1959). The Senate Finance Committee report cited by taxpayers itself declares that the mitigation provisions are intended “to take the profit out of inconsistency, whether exhibited by taxpayers or revenue agents, and whether fortuitous or the result of design.” S.Rep.No.1567, 75th" }, { "docid": "14848152", "title": "", "text": "protect the government’s position against the trusts, Lena, and Elaine at the time the estate made its claim for a refund. But for the Commissioner’s erroneous determination that the trusts were not bona fide partners and the subsequent failure to protect the government’s position before the statute of limitations had run, the present litigation need never have arisen. Taxpayers conclude that it is inequitable to remove the statutory bar as against them, when the difficulty was created by the actions of the government. Taxpayer’s argument, however, misconceives the nature of the mitigation of limitation provisions, which are remedial, riot punitive. Cory v. Commissioner, 261 F.2d 702, 704 (2d Cir. 1958), cert. denied, 359 U.S. 966, 79 S.Ct. 877, 3 L.Ed.2d 834 (1959); Olin Mathieson Chem. Corp. v. United States, 265 F.2d 293 (7th Cir. 1959). The Senate Finance Committee report cited by taxpayers itself declares that the mitigation provisions are intended “to take the profit out of inconsistency, whether exhibited by taxpayers or revenue agents, and whether fortuitous or the result of design.” S.Rep.No.1567, 75th Cong., 3d Sess. 49 (1938), 1939-1 (Part 2) Cum.Bull. 779, 815 (1939) (emphasis added); accord, Albert W. Priest Trust, 6 T.C. 221, 226 (1946). Thus we conclude that the Senate Finance Committee did not use the term “active inconsistency” in the pejorative sense that taxpayers seek to ascribe to it. In fine, we are not persuaded that anything in the legislative history compels us to engraft upon the statute an additional criterion regarding the relative fault of the parties, such as that suggested by the taxpayers, which would detract from its remedial effectiveness. See United States v. Rachal, 312 F.2d 376, 383 (5th Cir. 1962); Mullock, The Inconsistent Position: Section 1311(b) (1), 12 Mercer L.Rev. 300, 307 (1961). Nor do we accept taxpayers’ contention that the mitigation provisions were not meant to apply in circumstances like the present because the Commissioner had an opportunity (upon learning that a refund claim had been filed on behalf of the estate of Gus Drechs-ler) to protect the position of the government prior to the running of the statute" }, { "docid": "10621372", "title": "", "text": "was the correct taxable period, and they claim that a taxpayer’s raising of a defense to an Internal Bevenue Service position is not the maintenance of an “inconsistent position” under the mitigation statute. The Code and the decisions do not bear them out. Section 1311(b) (1) (B) says that a prerequisite to an adjustment is the adoption “in the determination [of] a position maintained by the taxpayer with respect to whom the determination is made, and the position maintained * * * by the taxpayer * * * is inconsistent with the erroneous * * * exclusion * * There is no distinction between positions which are “aggressive” or “defensive” in form. In fact, if taxpayers were right, no case in the Tax Court and few refund decisions could serve as a “determination” since in the former the taxpayer is always responding to a deficiency asserted by the Service, and most often refund suits follow upon the payment of deficiency assessments. There is no suggestion in the legislative history that the mitigation device was to be limited to the very few instances in which a taxpayer takes inconsistent positions completely on his own, not in any way responding to some Service action such as the finding of a deficiency. The Senate Finance Committee suggested a broader sweep when it said that the purpose was to take “the profit out of inconsistency, whether exhibited by taxpayers or revenue officials and whether fortuitous or the result of design.” S. Rep. No. 1567, 75th Cong., 3d Sess. 49 (1938), 1939-1 (Part 2) Cum. Bull. 779, 815. As shown infra, the regulations have always contemplated that the provision could be triggered by a “determination” embodying a taxpayer’s inconsistent position taken in response to a deficiency assessment. No case supports taxpayers’ extremely narrow interpretation. In Dobson v. United States, supra, 165 Ct. Cl. 460, 330 F. 2d 646, this court held that by claiming before the Tax Court, on appeal from a deficiency, that income was recognizable in 1949 rather than 1948, those plaintiffs had maintained a position inconsistent with their exclusion of the item" }, { "docid": "17846087", "title": "", "text": "following prerequisites to relief under the .mitigation provisions have been fulfilled: (1) a “determination” within the meaning of section 1313 has been made; (2) the position adopted by the determination is inconsistent with the erroneous tax treatment of the transaction in a previous taxable year; and (3) the determination is described in section 1312(7) of the Internal Revenue Code of 1954. The crucial issue is whether the Commissioner of Internal Revenue has actively maintained a position with regard to the 1962 determination which is inconsistent with the erroneous inclusion or recognition. The requirement of the maintenance of the inconsistent position is basic to the existence of the statutory mitigation provisions. The legislative history of the predecessor section to section 1311 is unambiguous: (1) To preserve unimpaired the essential function of the statute of limitations, corrective adjustments should (a) never modify the application of the statute except when the party or parties in whose favor it applies shall have justified such modification by active inconsistency * * *. [s. Rep. No. 1567, 75th Cong., 3d sess. 49 (1938).] Since the Commissioner, in the instant case, is the beneficiary of the statute of limitations, it is his maintenance of the inconsistent position which must be shown. Otherwise, the mitigation provisions will not permit the taxpayers to “awaken the sleeping dog.” Maguire, Surrey, and Traynor, Section 820 of the Revenue Act of 1988, 48 tale l. j. 719, 735 (1939). Our decision in Heineman v. United States, 183 Ct. Cl. 17, 391 F.2d 648 (1968), controls the instant case. In Heineman, tbe taxpayer’s decedent had viewed, for the years 1944 through 1946 and 1948 through 1952, the cash distributions made with respect to his common stock as nontaxable distributions in liquidation. Upon audit, it was determined that the distributions were in fact dividends. Deficiencies and interest were accordingly assessed and paid. Subsequently, the case of Maguire v. Commissioner of Internal Revenue, 222 F. 2d 472 (7th Cir. 1955), was decided, which held that the same company was, in fact, in partial liquidation. The distributions, therefore, were not subject to ordinary income tax. Although" }, { "docid": "10349784", "title": "", "text": "Section 1311 to apply and that he has not done so in this case. A similar argument was rejected in Yagoda v. Commissioner of Internal Revenue, 331 F.2d 485 (2d Cir. 1964): “Taxpayers argue, however, that the legislative history of the Revenue Act of 1938 indicates that the predecessor of Sections 1311-1314 was intended only to prevent exploitation of the statute of limitations by ‘active inconsistency.’ ” **■»•£* “Taxpayer’s argument, however, misconceives the nature of the mitigation of limitation provisions, which are remedial, not punitive. Cory v. Commissioner, 261 F.2d 702, 704 (2d Cir. 1958), cert. denied, 359 U.S. 966, 79 S.Ct. 877, 3 L.Ed.2d 834 (1959); Olin Mathieson Chem. Corp. v. United States, 265 F.2d 293 (7th Cir. 1959). The Senate Finance Committee report cited by taxpayers itself declares that the mitigation provisions are intended ‘to take the profit out of inconsistency, whether exhibited by taxpayers or revenue agents, and whether fortuitous or the result of design.’ S.Rep. No. 1567, 75th Cong., 3d Sess. 49 (1938), 1939-1 (Part 2) Cum.Bull. 779, 815 (1939) (emphasis added); accord, Albert W. Priest Trust, 6 T.C. 221, 226 (1946). Thus we conclude that the Senate Finance Committee did not use the term ‘active inconsistency’ in the pejorative sense that taxpayers seek to ascribe to it.” This same construction of the statute was approved in United States v. Rushlight, 291 F.2d 508, 518 (9th Cir. 1961), stating: “We approve of the rule enunciated in that case (Priest Trust) that the position adopted by the Commissioner need only be inconsistent with the erroneous treatment of the original transaction by the taxpayer.” Here, the position maintained by the Commissioner in regard to the deceased taxpayer’s 1956 return was inconsistent with the error in the deceased taxpayer’s 1946 return. Thus, in this case we have the “maintenance of an inconsistent position” by the Commissioner. Section 1311(a), also, requires that this “inconsistent position” be adopted in a determination involving one of the circumstances described in Section 1312, before any relief can be granted. It is agreed by both parties that there has been a determination in the instant" }, { "docid": "1378383", "title": "", "text": "erred in deciding that the mitigation provisions apply in the circumstances of this case, and that, even if they do otherwise apply, the taxpayers failed to file their refund claim within the extended period that would then be applicable. We also consider, alternatively, whether the doctrine of equitable recoupment supports recovery of the twice paid tax. III. The Mitigation Provisions Section 6511(a) of the Code provides that, ordinarily, a claim for refund of an overpayment of tax must be filed within three years of the date a taxpayer’s return was filed or two years from the date the tax was paid, whichever is later. Section 6511(a) accordingly barred any claim for tax refund filed after April 15,1977, unless the mitigation provisions lifted the time bar of this section. The mitigation provisions extend the period of limitations to file a timely claim for refund for one year from the date a final determination is made. IRC § 1314(b). Congress intended the mitigation provisions to “provid[e] for mitigation of some of the inequities under the Income Tax Laws caused by the Statute of Limitations and other provisions which now prevent equitable adjustment of various income hardships,” H.R.Rep. No. 2330, 75th Cong., 3d Sess. 56 (1938).... O'Brien v. United States, 766 F.2d 1038, 1042 (7th Cir.1985) (emphasis added). This court has narrowly construed the requirements of the mitigation provisions. See United States v. Rigdon, 323 F.2d 446, 449 (9th Cir.1963); United States v. Rushlight, 291 F.2d 508, 514 (9th Cir.1961) (interpreting predecessor statute, IRC § 3801 (1939)). The mitigation provisions require that (1) a final “determination” be made, IRC § 1313(a); (2) the error fall within one of the specified circumstances of adjustment, IRC § 1312; and (3) the determination be inconsistent with that made in another year, IRC § 1311(b). See Rigdon, 323 F.2d at 448; Rushlight, 291 F.2d at 515; O’Brien, 766 F.2d at 1042. We agree with the IRS that a final determination in this case was made when the Supreme Court denied certiorari in Kolom I on November 2,1981, and that this determination is inconsistent with the taxpayers’ reporting" }, { "docid": "10349783", "title": "", "text": "the seven types of error enumerated under Section 1312 must also be present. The defendant contends that Section 1311 does not apply because (a) the Commissioner has not maintained a position of “active inconsistency”, and (b) the “determination” is not one described in Section 1312 as required. Finally, defendant argues that this case does not fall under any of the circumstances of adjustment provided for under Section 1312. As for the first element under Section 1311 concerning the “[mjaintenance of an inconsistent position”, it is the contention of the plaintiffs that the $19,-670.09 adjustment in 1955 “was initiated by a revenue agent and embodied in a statutory notice of deficiency which plaintiff challenged in her petition to the Tax Court by appropriate assignment of error which the Commissioner denied in his answer. By thus invoking the prescribed Tax Court procedure for defining issues to be tried, the Commissioner ‘maintained’ the correctness of his adjustment * * * ” The defendant replies that the Commissioner must maintain a position of “active inconsistence” in order for the Section 1311 to apply and that he has not done so in this case. A similar argument was rejected in Yagoda v. Commissioner of Internal Revenue, 331 F.2d 485 (2d Cir. 1964): “Taxpayers argue, however, that the legislative history of the Revenue Act of 1938 indicates that the predecessor of Sections 1311-1314 was intended only to prevent exploitation of the statute of limitations by ‘active inconsistency.’ ” **■»•£* “Taxpayer’s argument, however, misconceives the nature of the mitigation of limitation provisions, which are remedial, not punitive. Cory v. Commissioner, 261 F.2d 702, 704 (2d Cir. 1958), cert. denied, 359 U.S. 966, 79 S.Ct. 877, 3 L.Ed.2d 834 (1959); Olin Mathieson Chem. Corp. v. United States, 265 F.2d 293 (7th Cir. 1959). The Senate Finance Committee report cited by taxpayers itself declares that the mitigation provisions are intended ‘to take the profit out of inconsistency, whether exhibited by taxpayers or revenue agents, and whether fortuitous or the result of design.’ S.Rep. No. 1567, 75th Cong., 3d Sess. 49 (1938), 1939-1 (Part 2) Cum.Bull. 779, 815 (1939) (emphasis" }, { "docid": "19865230", "title": "", "text": "fundamental purpose. The purpose of the statute of limitations to prevent the litigation of stale claims is fully recognized and approved. But it was never intended to sanction active exploitation, by the beneficiary of the statutory bar, of opportunities only open to him if he assumes a position diametrically opposed to that taken prior to the running of the statute.... Legislation has long been needed to supplement the equitable principles applied by the courts and to check the growing volume of litigation by taking the profit out of inconsistency, whether exhibited by taxpayers or revenue officials and whether fortuitous or the result of design. The legislation here proposed is based upon the following principles: (1) To preserve unimpaired the essential function of the statute of limitations, corrective adjustments should (a) never modify the application of the statute except when the party or parties in whose favor it applies shall have justified such modification by active inconsistency, and (b) under no circumstances affect the tax save with respect to the influence of the particular items involved in the adjustment. (2) Subject to the foregoing principles, disputes as to the year in which income or deductions belong, or as to the person who should have the tax burden of income or the tax benefit of deductions, should never result in a double tax or a double reduction of tax, or an inequitable avoidance of tax. (4) Corrective adjustments should produce the effect of attributing income or deductions to the right year and the right taxpayer, and of establishing the proper basis. S.Rep.No.1567, 75th Cong., 3d Sess. 49-50 (1938) (emphasis added). Case law also supports the Commissioner’s position that the mitigation provisions can apply regardless of who erroneously excluded the taxable item and who took inconsistent positions. In Yagoda v. Commissioner, 39 T.C. 170 (1962), aff’d, 331 F.2d 485 (2d Cir.), cert. denied, 379 U.S. 842, 85 S.Ct. 81, 13 L.Ed.2d 48 (1964), the Tax Court, focusing on section 1312(3)(A), said: It is true, as petitioners contend, that the exclusion ... was the result of the Commissioner’s erroneous overassessments after the [petitioners] had" }, { "docid": "14848153", "title": "", "text": "Cong., 3d Sess. 49 (1938), 1939-1 (Part 2) Cum.Bull. 779, 815 (1939) (emphasis added); accord, Albert W. Priest Trust, 6 T.C. 221, 226 (1946). Thus we conclude that the Senate Finance Committee did not use the term “active inconsistency” in the pejorative sense that taxpayers seek to ascribe to it. In fine, we are not persuaded that anything in the legislative history compels us to engraft upon the statute an additional criterion regarding the relative fault of the parties, such as that suggested by the taxpayers, which would detract from its remedial effectiveness. See United States v. Rachal, 312 F.2d 376, 383 (5th Cir. 1962); Mullock, The Inconsistent Position: Section 1311(b) (1), 12 Mercer L.Rev. 300, 307 (1961). Nor do we accept taxpayers’ contention that the mitigation provisions were not meant to apply in circumstances like the present because the Commissioner had an opportunity (upon learning that a refund claim had been filed on behalf of the estate of Gus Drechs-ler) to protect the position of the government prior to the running of the statute of limitations. As the Tax Court said in its opinion in the present case: “While the mitigation provisions might have been formulated in terms of the Commissioner’s or the taxpayer’s ability to correct the error when the inconsistency involved was first brought to his attention, they were not so written. Instead, all that the provisions of sections 1311-1314 require is that correction of the error is prevented by the operation of any law or rule of law when the determination becomes final (Sections 1311(a) and 1313(a) (1)) and that the notice of deficiency or claim for refund making the correcting adjustment be sent within one year after such determination becomes final (Section 1314(b)). These conditions were met in the present eases.” 39 T.C. at 183-184. (Emphasis in original.) The second provision upon which taxpayers rely is section 1311(b) (3): “(3) Existence of relationship.— In case the amount of the adjustment would be assessed and collected in the same manner as a deficiency (except for cases described in section 1312(3) (B)), the adjustment shall not be" }, { "docid": "12198665", "title": "", "text": "allowance or disallowance of a deduction, or in the tax treatment of a trans action affecting the basis of property, even though the statute of limitations had run on either the taxpayer or the Government in the year of the error. See Yagoda v. Commissioner of Internal Revenue, 331 F.2d 485, 488 (2 Cir.), cert. denied, 379 U.S. 842, 85 S.Ct. 81, 13 L.Ed. 2d 48 (1964); 2 Mertens, Law of Federal Income Taxation § 14.01 (Zimet & Stanley ed. 1967). A distinct need for such relief had been demonstrated. Judicial application of the doctrines of estoppel, recoupment, and set-off — the prior method of mitigating the inequities which arose when, as to the treatment of a particular item in an unclosed year, either the Commissioner or the taxpayer successfully maintained a position inconsistent with an erroneous treatment of the same item in a year already closed by the operation of some rule of finality or by the running of the statute of limitations — had been neither uniform nor systematic. See S.Rep.No. 1567, 75th Cong., 3d Sess. 49 (1938). Congress decided that legislation was needed to “supplement the equitable principles applied by the courts and to check the growing volume of litigation by taking the profit out of inconsistency whether exhibited by taxpayers or revenue officials and whether fortuitous or the result of design.” Ibid. Legislation was forthcoming which soon found its way into I.R.C.1939 as Section 3801 of that Code. The 1939 Code provision was later expanded and, as so expanded, became Sections 1311-1315 of I.R.C.1954, 26 U.S.C. §§ 1311-1315. In order to qualify in the present case for mitigation under these sections as to the alleged error in their 1956 return, the appellants must satisfy each of the several threshold requirements which appear in Sections 1311-1315. Among these is the requirement that there be a “determination” in one year (here 1955) the effect of which demonstrates that a position taken by the Commissioner or a taxpayer in another tax year (here 1956) was erroneous where, at the time of the “determination” the other tax year is closed" }, { "docid": "21338833", "title": "", "text": "a result, double taxation, double deduction or inequitable avoidance of the tax”, Gill v. Commissioner, 5 Cir., 1962, 306 F.2d 902. Here the change in inventory by the second examining agent — and only this adjustment — was the item of income that caused overpayment by the taxpayer in the year 1948 of $93,680.07 and in the year 1949 in the amount of $15,175.29. CONCLUSION Section 3801 of the 1939 Code and Sections 1311-15 of the 1954 Code are technical, complicated, and necessarily difficult to administer. The interpretation of these sections by the Internal Revenue Service is therefore entitled to great weight. The Service, however, notwithstanding its position in this case, a position that to us is inconsistent with Gooch, approved Gooch and construed its holding broadly. See Rev.Rul. 58-327, 1958 Cum.Bull. Such uncertainty in the administration of the mitigating provisions is an inevitable consequence of the liberal approach of the Court of Claims, in Gooch, Hackney, and Moultrie, and the strict approach of the Tax Court, in Brennen v. Commissioner, 20 T.C. 495 (1953) and MacDonald v. Commissioner, 17 T.C. 934 (1951). See Comment, Adjustments for Tax Consequences, 72 Harv.L.Rev. 1536 (1959). In reaching for a correct result it seems to us that the Gooch approach is more consonant with the statutory purpose of the mitigating provisions than the over-literal approach adopted in MacDonald. It is true that Section 3801 represents an exception to a statute of repose, and that an argument for strict construction can be based on certain language of Senate Report No. 1567: the mitigating provisions may be applied “only when the party or parties in whose favor [they apply] shall have justified such modification by active inconsistency”. S.Rep.No.1567, 75 Cong. 3d Sess., 49 (1938). But the most obvious reason for a statute of limitation — staleness of evidence — is absent in cases such as the instant case. The overriding purpose of Section 3801 is to permit an equitable adjustment by treating an error as if it had never existed. Senate Report No. 1567 makes it clear that “disputes as to the year in which" }, { "docid": "14848144", "title": "", "text": "revenue agent assigned to the case was advised by counsel for the estate that the government should take the necessary steps to protect its position with regard to the trusts and Lena. The agent replied that it was not necessary to send out deficiency notices to these other taxpayers, since any refund to the estate could not exceed the cash payment made by the estate, exclusive of the overassessments credited to the trusts and Lena. The Commissioner disallowed the refund claims and the estate brought suit in the United States District Court for the Southern District of New York. On April 18, 1958, the district court rendered judgment, 161 F. Supp. 319 (1958), for the estate in the entire amount of the deficiencies, inclusive of the overassessments. That determination became final on September 19, 1958, when the notice of appeal filed by the United States was dismissed by stipulation. By that time correction of the effect of the error of excluding, through crediting the overassessments, any share of partnership income from the returns of the trusts and Lena would have been prevented, absent Sections 1311-1314, by operation of the statute of limitations. Proceeding under these mitigation of limitations provisions, the Commissioner sent statutory notices of deficiency to the petitioners on June 5, 1959. Liability as partners is asserted against Lena (for 1945) and the trusts. Liability as transferees is asserted against Lena (for 1944) and Blaine. I. Prior to the Revenue Act of 1938 a double advantage could accrue to the Commissioner or to a taxpayer who successfully maintained as to the treatment of a particular item in an open year a position inconsistent with an erroneous treatment of the same item in another year that could not be reopened because of the statute of limitations or some other rule of finality. In some cases the courts mitigated the resulting inequities through the application of the doctrines of estoppel or recoupment, but such decisions were neither uniform nor systematic. See S.Rep.No.1567, 75th Cong., 3d Sess. 49 (1938), 1939-1 (Part 2) Cum.Bull. 779, 815 (1939). Section 820 of the 1938 Code" }, { "docid": "10621373", "title": "", "text": "be limited to the very few instances in which a taxpayer takes inconsistent positions completely on his own, not in any way responding to some Service action such as the finding of a deficiency. The Senate Finance Committee suggested a broader sweep when it said that the purpose was to take “the profit out of inconsistency, whether exhibited by taxpayers or revenue officials and whether fortuitous or the result of design.” S. Rep. No. 1567, 75th Cong., 3d Sess. 49 (1938), 1939-1 (Part 2) Cum. Bull. 779, 815. As shown infra, the regulations have always contemplated that the provision could be triggered by a “determination” embodying a taxpayer’s inconsistent position taken in response to a deficiency assessment. No case supports taxpayers’ extremely narrow interpretation. In Dobson v. United States, supra, 165 Ct. Cl. 460, 330 F. 2d 646, this court held that by claiming before the Tax Court, on appeal from a deficiency, that income was recognizable in 1949 rather than 1948, those plaintiffs had maintained a position inconsistent with their exclusion of the item from their 1949 returns. See, also, Karpe v. United States, supra, 167 Ct. Cl. at 283-85, 292, 335 F. 2d at 456-57, 461 (prior “determination” was a district court refund suit); Yagoda v. Commissioner, 331 F. 2d 485 (C.A. 2) cert. denied, 379 U.S. 842 (1964) (the same) ; of Heineman v. United, States, supra, 183 Ct. Cl. at 22-24, 391 F. 2d at 651-52. Insofar as taxpayers claim that the inconsistency must be an “active” one, their conduct in the prior litigation fits that characterization, however it be construed. Cf. Heinenian v. United States, supra. They were by no means passive parties, merely accepting or acquiescing in a position presented by the Internal Revenue Service. Bather, they brought the refund suit, and then deliberately maintained, put forward, and pressed upon the court, over opposition, the position that was adopted and reflected in our opinion and judgment. Moreover, the years 1950-1952 were no longer open when plaintiffs filed their refund suit for 1954. Even under the view of “active inconsistency” formulated in Commissioner v. Estate" }, { "docid": "19865231", "title": "", "text": "in the adjustment. (2) Subject to the foregoing principles, disputes as to the year in which income or deductions belong, or as to the person who should have the tax burden of income or the tax benefit of deductions, should never result in a double tax or a double reduction of tax, or an inequitable avoidance of tax. (4) Corrective adjustments should produce the effect of attributing income or deductions to the right year and the right taxpayer, and of establishing the proper basis. S.Rep.No.1567, 75th Cong., 3d Sess. 49-50 (1938) (emphasis added). Case law also supports the Commissioner’s position that the mitigation provisions can apply regardless of who erroneously excluded the taxable item and who took inconsistent positions. In Yagoda v. Commissioner, 39 T.C. 170 (1962), aff’d, 331 F.2d 485 (2d Cir.), cert. denied, 379 U.S. 842, 85 S.Ct. 81, 13 L.Ed.2d 48 (1964), the Tax Court, focusing on section 1312(3)(A), said: It is true, as petitioners contend, that the exclusion ... was the result of the Commissioner’s erroneous overassessments after the [petitioners] had correctly reported such income and paid taxes on it. Nevertheless, the net effect was a “double exclusion” of such . .. income, as described in section 1312(3)(A), and unless the mitigation provisions do apply herein, such income will now escape taxation. Insofar as the provisions of section 1312(3XA) are concerned, it is immaterial that the Commissioner is partly to blame for the error to be corrected. All that is required under these provisions is that the determination result in a double exclusion of items of gross income from the income of the taxpayer with respect to whom the determination is made and from the income of related taxpayers. Id. at 179. In Albert W. Priest Trust v. Commissioner, 6 T.C. 221 (1946), the Tax Court considered and rejected the argument made by the taxpayers therein that the mitigation provisions should not apply to their disadvantage unless they had maintained inconsistent positions. The sole requirement of the statute is that the position so adopted be inconsistent with the prior erroneous allowance of the deduction. It does" }, { "docid": "10349785", "title": "", "text": "added); accord, Albert W. Priest Trust, 6 T.C. 221, 226 (1946). Thus we conclude that the Senate Finance Committee did not use the term ‘active inconsistency’ in the pejorative sense that taxpayers seek to ascribe to it.” This same construction of the statute was approved in United States v. Rushlight, 291 F.2d 508, 518 (9th Cir. 1961), stating: “We approve of the rule enunciated in that case (Priest Trust) that the position adopted by the Commissioner need only be inconsistent with the erroneous treatment of the original transaction by the taxpayer.” Here, the position maintained by the Commissioner in regard to the deceased taxpayer’s 1956 return was inconsistent with the error in the deceased taxpayer’s 1946 return. Thus, in this case we have the “maintenance of an inconsistent position” by the Commissioner. Section 1311(a), also, requires that this “inconsistent position” be adopted in a determination involving one of the circumstances described in Section 1312, before any relief can be granted. It is agreed by both parties that there has been a determination in the instant case as defined by Section 1313(a) (1), which provides: “(a) Determination.- — For purposes of this part, the term ‘determination’ means— “(1) a decision by the Tax Court * ■» * >> The decision by the Tax Court in M. Pauline Casey, 38 T.C. 357 (1962), fulfilled the requirement of a “determination.” However, the dispute arises because the adjustment permitted by the mitigation provisions is confined to the specific group of cases in Section 1312. The defendant maintains that the taxpayer’s situation fits none of these cases; the plaintiffs assert that they can rely on Section 1312(7) — “Basis of property after erroneous treatment of a prior transaction.” I agree with plaintiff that this section is applicable here. Section 1312(7) provides: “(7) Basis of property after erroneous treatment of a prior transaction.— “(A) General rule. — The determination determines the basis of property, and in respect of any transaction on which such basis depends, or in respect of any transaction which was erroneously treated as affecting such basis, there occurred, with respect to a taxpayer" }, { "docid": "14848150", "title": "", "text": "with respect to whom the determination is made, and the position * * maintained by the taxpayer in the case described in subparagraph (B) is inconsistent with the erroneous inclusion, exclusion, omission, allowance, disallowance, recognition, or nonrecognition, as the case may be.” On its face, section 1311(b) (1) would seem to have been satisfied. The determination adopted the position maintained by Gus before the district court that the trusts and Lena were his partners and that their share of the partnership income should be excluded from his gross income, and that position was inconsistent with the erroneous exclusion of the allocable portions of the partnership income from the gross income of the trusts and Lena. Taxpayers argue, however, that the legislative history of the Revenue Act of 1938 indicates that the predecessor of Sections 1311-1314 was intended only to prevent exploitation of the statute of limitations by “active inconsistency.” They rely principally upon a statement in the Senate Finance Committee report that: “The purpose of the Statute of Limitations to prevent the litigation of stale claims is fully recognized and approved. But it was never intended to sanction active exploitation, by the beneficiary of the statutory bar, of opportunities only open to him if he assumes a position diametrically opposed to that taken prior to the running of the statute * * * The legislation here proposed is based upon the following principles: (1) to preserve unimpaired the essential function of the statute of limitations, corrective adjustments should (a) never modify the application of the statute except when the party or parties in whose favor it applies shall have justified such modification by active inconsistency * * S.Rep.No.1567, 75th Cong., 3d Sess. 49-50 (1938), 1939-1 (Part 2) Cum.Bull. 779, 815 (1939). See Commissioner v. Estate of Weinrich, 316 F.2d 97, 105 (9th Cir. 1963). In the present case, the argument continues, the taxpayers have not actively sought to exploit the statute of limitations. The taxpayers note that the original returns of Gus and the other taxpayers were consistent with each other and correct and that the Commissioner was advised to" } ]

[ { "docid": "23513100", "title": "", "text": "§ 706. In certain limited circumstances, as, for example, when a hearing “on the record” is required by statute, a court must set aside agency action when it is not supported by substantial evidence. 5 U.S.C. § 706(2)(E). Otherwise, an agency decision can be set aside if it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Because the AEA does not require an “on the record” hearing, see supra Part IIA-2, we must apply the “arbitrary and capricious” test to this informal adjudication. See Camp v. Pitts, 411 U.S. 138, 140-142, 93 S.Ct. 1241, 1243, 36 L.Ed.2d 106; Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414-415, 91 S.Ct. 814, 822, 28 L.Ed.2d 136; United States Lines v. FMC, 584 F.2d 519, 526 (D.C.Cir.1978). Judicial review in accordance with this standard is not toothless: while the agency’s decision “is entitled to a presumption of regularity, * * * that presumption is not to shield [its] action from a thorough, probing, in-depth review.” Citizens to Preserve Overton Park, Inc., supra at 415, 91 S.Ct. at 823. To facilitate review of informal proceedings in the absence of formal findings of fact and conclusions of law, it is crucial that the agency articulate the reasons for its decision. City Fed. Sav. & Loan Ass’n v. Federal Home Loan Bank Bd., 600 F.2d 681, 688-689 (7th Cir.1979). In the order before this Court, NRC clearly stated its reasons for issuing Amendment No. 3. It relied principally on a staff memorandum evaluating KM’s demolition activities under Amendment No. 1 and the potential impacts of Amendment No. 3, and considering the potential consequences of on site storage of the offsite waste materials. (Admin. Rec., Vol. 6, Doc. No. 4). The staff made numerous site visits to view Amendment No. 1 demolition in progress. They concluded that KM’s plans under Amendment No. 1 for project management, radiological health and safety and employee training had worked well, and would be adequate for Amendment No. 3 demolition. The buildings were examined during a site visit and" } ]

[ { "docid": "17351558", "title": "", "text": "of rules promulgated under it. See 42 U.S.C. § 2022(c)(2). The appropriate standard of review for this type of informal, notice and comment rulemaking is that an agency’s action may be set aside if found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A). The Supreme Court recently has reiterated a restrictive view of the arbitrary and capricious standard, stating: “The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ... In reviewing that explanation, we must ‘consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’ ... Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be as cribed to a difference in view or the product of agency expertise.” Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983) (citations omitted). In addition, as part of our review, we also determine: (1) whether the agency acted within the scope of its authority, and (2) whether the agency complied with the prescribed administrative procedures. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-17, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971); American Petroleum Institute v. EPA, 540 F.2d 1023, 1028 (10th Cir.1976), cert. denied, 430 U.S. 922, 97 S.Ct. 1340, 51 L.Ed.2d 601 (1977); 5 U.S.C. § 706(2)(A) (C) &(D). II A preliminary question arises as to what documents we may review in considering these petitions. The" }, { "docid": "22599669", "title": "", "text": "Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983); Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-17, 91 S.Ct. 814 823-24, 28 L.Ed.2d 136 (1971). If the agency decision was based on a consideration of the relevant factors and there has not been “a clear error of judgment,” then the agency decision was not arbitrary or capricious. Overton Park, 401 U.S. at 416, 91 S.Ct. at 823-24; Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 1861, 104 L.Ed.2d 377 (1989). In State Farm, the Supreme Court offered several examples of circumstances in which an agency action “normally” would be considered arbitrary and capricious: situations where “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” State Farm, 463 U.S. at 43, 103 S.Ct. at 2867. These are merely “examples,” Puerto Rico Sun Oil Co. v. U.S. EPA, 8 F.3d 73, 77 (1st Cir.1993); others could be recited as well. Whether reviewing an EIS or a rulemaking proceeding, the “reviewing court should not attempt itself to make up for such deficiencies; we may not supply a reasoned basis for the agency’s action that the agency itself has not given.” State Farm, 463 U.S. at 43, 103 S.Ct. at 2867 (citing SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947)). ‘While this is a highly deferential standard of review, it is not a rubber stamp.” Citizens Awareness Network, Inc. v. U.S. Nuclear Regulatory Comm’n, 59 F.3d 284, 290 (1st Cir.1995). Although “the ultimate standard of review is a narrow one,” the court must undertake a “thorough, probing, indepth review” and" }, { "docid": "7799845", "title": "", "text": "The court found nothing improper in the Department’s refusal to provide complete reimbursement for the other G & A costs which Humana wished to treat as solely attributable to Medicare. The court held that the Secretary had a rational basis for altering the reimbursement formula. Appellant asserts the contention that the new rule is an arbitrary and capricious exercise of the Secretary’s informal rule-making authority under 5 U.S.C. § 706(2)(A). While the scope of review is narrow we must nevertheless act within the scope directed by the Supreme Court. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136. The Supreme Court restated the standard of review in Motor Vehicle Manufacturers Association of the United States v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443: “Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” A rational connection must be found between the facts before the agency and the rule-making choice made. Id. 103 S.Ct. at 2866-67. See also Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 245, 9 L.Ed.2d 207. In the case before us we must conclude that the evidence that was before the agency is contrary to the administrative action ultimately taken. The fundamental nexus between evidence and agency action is absent. This is demonstrated by the deficiencies of the Westat Report, which the Report itself emphasizes. This is the unidentified “consultant’s study” in the NPRM that purportedly justified the rule’s promulgation. This court must apply added requirements when there has been a significant departure from long-standing policy. Motor Vehicle Manufacturers Association of the United States v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 103 S.Ct. 2856," }, { "docid": "5858974", "title": "", "text": "(N.D.Iowa 1984); East Jefferson General Hosp. v. Heckler, No. 83-4107 (E.D.La. Oct. 18, 1984); Arkansas Methodist Hosp. v. Heckler, 597 F.Supp. 238 (E.D.Ark.1984); Sisters of St. Mary v. Heckler, No. 83-0789-C(4) (E.D.Mo. Nov. 6, 1984); Charter Medical Corp. v. Heckler, 604 F.Supp. 638 (M.D.Ga.1985). Standard of Review The APA directs that a court shall “hold unlawful and set aside agency action, findings, and conclusions found to be — (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). A reviewing court must determine “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Motor Vehicle Mfrs. Assn. v. State Farm Mut., 463 U.S. 29, 103 S.Ct. 2856, 2867, 77 L.Ed.2d 443, 458 (1983). The scope of review is narrow and we may not substitute our judgment for that of the agency. Notwithstanding, a rule or regulation may be deemed arbitrary and capricious where the agency “offer[s] an explanation for its decision that runs counter to the evidence before the agency____” Id. Appellees maintain that the Secretary erred by relying on inadequate emperical information. Appellees contend that the explanation given for the Secretary’s decision runs counter to the evidence in the administrative record, including the Westat Study. This argument posits two questions for our resolution: (1) is the Westat Study flawed, and (2) did the Secretary rely entirely or primarily on that report in the promulgation of the Malpractice Rule? The Westat Study As evidence of the proposition that the government pays a disproportionate share of the cost of hospital malpractice insurance, the Westat Study is woefully inadequate. This is so, in no small measure, because the study was commissioned to analyze the causes of malpractice-related injuries and was designed to gather information that could be used to develop injury-prevention programs. The study was not intended to furnish a critical analysis of the medical malpractice insurance premium calculus. We perforce must note the cautionary statement of the authors: “It seems proper, since this is a census, to make inferences only within" }, { "docid": "10468277", "title": "", "text": "right to sell such mortgage.” However, the plaintiffs do contend that the Secretary’s decision to exercise this statutory authority was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” within the meaning of the APA, 5 U.S.C. § 706(2)(A). The scope of judicial review over agency action under the “arbitrary and capricious” standard is a narrow one, and the court must not simply substitute its judgment for that of the agency. See Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). A reviewing court must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974). Agency action is arbitrary and capricious “if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Manufacturers, 463 U.S. at 43, 103 S.Ct. at 2866. Although the standard is deferential to agency expertise, it does not shield the Secretary’s actions “from a thorough, probing, in-depth review.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). Several other courts have had occasion to address claims that the Secretary of HUD abused his discretion by ignoring the relevant policies underlying the National Housing Act. In United States v. Winthrop Towers, 628 F.2d 1028 (7th Cir.1980), the Seventh Circuit reversed a district court’s ruling that HUD’s decision to foreclose on a mortgage was “committed to agency discretion by law” and therefore unreviewable under the APA, 5 U.S.C. § 701. The court noted that the National Housing Act specifically requires HUD to exercise its powers," }, { "docid": "2746112", "title": "", "text": "[or] offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” 103 S.Ct. at 2867. The Secretary did not offer a plausible explanation for the Malpractice Rule or consider several important aspects of the problem it was intended to address. Indeed, the Secretary failed to substantiate her conclusion that a problem ever existed, namely, that Medicare was paying a disproportionate amount of G & A costs. She arrived at this conclusion through several leaps in reasoning. She began with the premise, derived from the Westat Study, that “malpractice awards for Medicare ... patients are significantly lower in amount than losses for other patient population.” 15 Fed.Reg. 15,745 (1979). From this she concluded that “Medicare pay[s] a disproportionate amount of malpractice [premium] costs.” Id. And from this and the observation that malpractice costs are a significant part of the G & A pool, she finally concluded that Medicare was paying more than its share of the G & A pool. This logic crumbles upon analysis. The Secretary’s initial premise, that Medicare patients on average receive significantly lower malpractice awards than non-Medicare patients, came from the Westat Study. This study, however, came under significant criticism regarding the adequacy of its data base to generalize to national totals and the accuracy of the statistics relied on. Since these criticisms cast serious doubt on the premise grounding the Secretary’s explanation, her failure to respond to them was arbitrary and capricious. Next, the Secretary’s conclusion that Medicare was paying a disproportionate share of malpractice premiums rests on a leap of logic, quite apart from the questionable applicability of the Westat Study. Even if it is true that Medicare patients recover significantly lower awards, it does not necessarily follow that Medicare pays a significantly disproportionate amount of malpractice premiums. This would follow only if the Secretary showed that a reduced amount of malpractice recoveries for a specific patient population would result in significantly lower premiums for that population. Although the" }, { "docid": "6960867", "title": "", "text": "the Medicare Act. The court will deal with each of these claims separately. Violation of the APA Plaintiffs claim the Secretary violates the arbitrary and capricious standard of the APA, 5 U.S.C. § 706(2)(A), by offering an explanation for the regulation based on inadequate evidence (the Westat Study) and by failing to consider all relevant data pertaining to the malpractice problem. Pis. brief at 37-38. The Secretary argues that the Westat Study merely confirms conclusions already deduced by the Agency from a full study of the malpractice problem conducted in 1973, but not made a part of the Administrative record. Moreover, the Secretary boldly asserts that the regulation must be sustained even without the Westat Study as a reasonable exercise of executive discretion. Defs. memo at 16. She attempts, therefore, to support her decision to change the method of malpractice insurance reimbursement with evidence not found in the record. This she cannot do. The applicable standard of review, § 706(2)(A) of the APA provides: that the reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be (A) arbitrary and capricious, an abuse of discretion or otherwise not in accordance with law____ Camp v. Pitts, 411 U.S. 138 at 142 [93 S.Ct. 1241, at 1244, 36 L.Ed.2d 106] (1973). This standard is a highly deferential one. It presumes agency action to be valid. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). This is not to say, however, that the court must rubber-stamp the agency decision as correct. To do so would render the review process superfluous. Ethyl Corp. v. Environmental Protection Agency, 541 F.2d 1, 34 (D.C.Cir.1976). Therefore, the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Citizens to Preserve Overton Park, supra. Although the court is not permitted to substitute its judgment for that of the agency, it must make a substantial inquiry into the facts to insure that the agency demonstrates a rational connection between the facts" }, { "docid": "750909", "title": "", "text": "ample latitude to ‘adapt their rules and policies to the demands of changing circumstances,’ ” Motor Vehicle, supra, 103 S.Ct. at 2866, the scope of our review does not change. Id. An agency’s rule is arbitrary and capricious if (1) the agency relied on factors which Congress had not intended it to consider; (2) the agency entirely failed to consider an important aspect of the problem; (3) if it offered an explanation for its decision that runs counter to the evidence before the agency or is so implausible that it could not be attributed to a difference in view or the product of agency expertise. Id. at 2867. With these guidelines in mind, we agree with Judges Fullam and DeMascio that the rule is arbitrary and capricious. There are several reasons why the rule cannot pass judicial muster. First, the Westat study furnishes an inadequate basis for the rule as we previously noted in our discussion of the agency’s compliance with the “basis and purpose” statement. In fact, the authors of the Westat study cautioned against extrapolation of wide-ranging conclusions and noted that “conclusions must be drawn very cautiously because of the possibility of biased data.” See Westat Report at 2-3 (PI.Ex. 21, Def.Ex. C). The authors note two potential sources of bias in the sample of claims. First, many claims had multiple defendants who were not always represented by participating companies and although reporting companies probably knew the total number of defendants “they could not provide us with specific information about their characteristics.” Id. at 2-2. The second potential source of bias is that some providers, especially hospitals, are self-insuring and thus their claims had “no chance of turning up in the data base.” Id. In Almay, Inc. v. Califano, 569 F.2d 674, 677, 682 (D.C.Cir.1977), the court considered whether the FDA’s reliance on a “flawed survey”, about which the Director of FTC’s Bureau of Consumer Protection who sponsored and designed the study warned that the results should be used with caution, constituted a violation of the arbitrary and capricious standards of 5 U.S.C. § 702(2)(A). The court held" }, { "docid": "21860752", "title": "", "text": "consider the standards the District Court should use to decide if the Secretary’s actions were arbitrary and capricious under the Administrative Procedure Act, and if her actions violated the Medicare Act. The two questions are closely linked. The Supreme Court has recently reiterated the governing standard: Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Manufacturers Association of the United States v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 103 S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1983). HHS has not here relied on factors Congress did not intend it to consider. The District Court should, however, closely examine the full administrative record for the other administrative excesses described above. There are two important aspects of the problem that HHS may have failed entirely to have considered in a reasoned fashion. The first is whether the pre-Malpractice Rule G & A pool resulted in Medicare patients’ subsidization of non-Medicare patients. The second is whether HHS considered a particularly plausible alternative to the Malpractice Rule. Intermingled with these claims is the assertion that the explanation for the Malpractice Rule runs counter to the Westat study’s evidence before the agency, and the assertion that the Malpractice Rule is based on an implausible interpretation of the Medicare statute or is intrinsically incapable of fulfilling its stated goals. The Malpractice Rule is a “unique exception” to the long-standing agency practice of lumping a wide variety of costs together into the “G & A” cost center. Final Rule, 44 Fed.Reg. 31,641, 31,642 (1979). Exceptions to long-standing rules are clearly permissible. Agencies like HHS are not expected to cast their rules in stone; “they are supposed, within the limits of the law and of fair and prudent administration, to adapt their rules" }, { "docid": "7799844", "title": "", "text": "§ 706(2)(A). Finally, Humana made a claim in the alternative for total reimbursement of other indirect G & A costs it viewed as exclusively attributable to the Medicare program. The crux of this claim is that if the Malpractice Rule is valid, then the averaging principle can no longer be a defense to attempts by providers at “discrete costing” other G & A items. . The parties filed cross-motions for summary judgment. The trial court ruled in favor of the Secretary. As to the substantive issues the court recognized that there might be “problems” with the Westat Report, the “consultant’s study” used as a basis for the new rule. Yet the court found that the Secretary had authority to employ different methods in calculating reimbursement. The rule, therefore, had “some basis” and was not arbitrary and capricious. The court found no fundamental discrepancy between using the averaging principle for all other G & A costs while parsing out malpractice insurance costs for separate treatment under the new rule. The court also rejected Humana’s cross-subsidization argument. The court found nothing improper in the Department’s refusal to provide complete reimbursement for the other G & A costs which Humana wished to treat as solely attributable to Medicare. The court held that the Secretary had a rational basis for altering the reimbursement formula. Appellant asserts the contention that the new rule is an arbitrary and capricious exercise of the Secretary’s informal rule-making authority under 5 U.S.C. § 706(2)(A). While the scope of review is narrow we must nevertheless act within the scope directed by the Supreme Court. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136. The Supreme Court restated the standard of review in Motor Vehicle Manufacturers Association of the United States v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443: “Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation" }, { "docid": "18029165", "title": "", "text": "shown to a federal agency. Id. at 795-96. In other words, the first inquiry of the court is whether the agency action “resulted in noncompliance with the federal statute and regulations.” Id. at 795 (quoting from Colorado Health Care, 842 F.2d at 1165) (emphasis added). “This is an issue of law, subject to de novo review in federal court.” Id.; see also Kansas Health Care Ass’n, Inc. v. Kansas Dep’t of Social and Rehabilitation Services, 31 F.3d 1536, 1544 (10th Cir.1994); Kansas Hospital Assoc. v. Whiteman, 835 F.Supp. 1556, 1567 (D.Kan.1993), aff'd, 36 F.3d 1106 (10th Cir.1994). All other issues are reviewed under an arbitrary and capricious standard. Amisub, 879 F.2d at 795. The arbitrary and capricious standard that will be applied to all issues other than “questions of law” as defined by Amisub is “highly deferential; the agency’s action is presumed valid if a reasonable basis exists for its decision.” Amisub, 879 F.2d at 800. However, “the presumption of validity ‘is not to shield [the agency’s] action from a thorough, probing, in-depth review.’” Id. (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971)). Thus, the court must determine whether the agency action ‘“was based on a consideration of the relevant factors’ and examine “whether there has been a clear error of judgment.’ ” Friends of the Bow v. Thompson, 124 F.3d 1210, 1215 (10th Cir.1997) (quoting Overton Park, 401 U.S. at 416, 91 S.Ct. at 824); see also Amisub, 879 F.2d at 800. “Generally, an agency decision will be considered arbitrary and capricious if the agency had relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Friends of the Bow, 124 F.3d at 1215 (quotation omitted). “The Court is not empowered to substitute its judgment for that of the" }, { "docid": "6460738", "title": "", "text": "of the reviewing court is to apply the appropriate APA standard for review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents to the reviewing court.” Florida Power & Light v. Lorion, 470 U.S. at 743-44, 105 S.Ct. at 1607. The validity of the agency’s action must “stand or fall” on that record. Camp v. Pitts, 411 U.S. at 143, 93 S.Ct. at 1244; see also Vermont Yankee, 435 U.S. at 549, 98 S.Ct. at 1214. That determination is purely a question of law. Judicial review of agency action under the “arbitrary and capricious” standard mandates a searching inquiry into the facts and their relationship to the articulated basis for an agency’s action. After satisfying itself that the agency has acted within the scope of its authority, the court must engage in a “thorough, probing, in-depth” review to determine whether the agency’s decision-making process was reasoned, took into account all relevant policies and information, and reached a result consistent with congressional intent. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416-17, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971); Sierra Club v. United States Army Corps of Eng ’rs, 772 F.2d at 1051. A reviewing court must determine whether the agency’s stated explanation for its action is “based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Motor Vehicle Mfrs. Ass’n v. State Farm Auto Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983) (quoting Bowman Transportation, Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974)). As the Supreme Court held in State Farm: [njormally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or" }, { "docid": "17016843", "title": "", "text": "the EPA excluded from its consideration wells drilled before 1980 and not recompleted since then (“pre-1980 wells”), thereby failing to consider the “age of equipment and facilities” factor mandated by Section 304(b)(2)(B) of the CWA. 33 U.S.C. § 1314(b)(2)(B). Second, they argue that the EPA based its pollutant reduction estimates on a deficient study that egregiously overestimated the pollutant loading for produced water in the Gulf Coast. For reasons that follow, we are satisfied that the EPA adequately considered the age factor in promulgating the zero discharge limit, and that the EPA’s use of the challenged study provides no basis to contest the produced water limit. A. Texas Petitioners challenge substantive conclusions that the EPA drew from the administrative record. Review of their petitions is therefore governed by the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551-59, 701-06, which establishes a deferential standard of review for agency action. To invalidate an agency action, the Court must determine that it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”; “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right”; or “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A),(C)-(D). An agency rule is arbitrary and capricious “if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1983). The Court must make a “searching and careful review” to determine whether an agency action was arbitrary and capricious, but “the ultimate standard of review is a narrow one.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). Under this deferential standard, the Court may not substitute its own judg" }, { "docid": "750908", "title": "", "text": "and careful inquiry into the facts, the court must consider whether the agency’s decision was based on consideration of the relevant factors and whether there has been a clear error of judgment. Overton Park, supra, 401 U.S. at 416, 91 S.Ct. at 823, and whether the agency has articulated a rational connection between the facts found and the choice made. Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., - U.S. -, 103 S.Ct. 2246, 2257, 76 L.Ed.2d 437 (1983). The Secretary claims that the malpractice rule is a logical response to an immediate and serious problem — Medicare paying an allegedly disproportionate amount of malpractice costs under the pri- or program. The Secretary’s, as well as the entire nation’s, concern with the ever-escalating costs of Medicare, and indeed the entire social security program, and fear of financial insolvency is not unfounded. Nor does her concern with budgetary considerations evidence an arbitrary and unreasoned approach to a very serious problem. But this does not end our inquiry. Although “an agency must be given ample latitude to ‘adapt their rules and policies to the demands of changing circumstances,’ ” Motor Vehicle, supra, 103 S.Ct. at 2866, the scope of our review does not change. Id. An agency’s rule is arbitrary and capricious if (1) the agency relied on factors which Congress had not intended it to consider; (2) the agency entirely failed to consider an important aspect of the problem; (3) if it offered an explanation for its decision that runs counter to the evidence before the agency or is so implausible that it could not be attributed to a difference in view or the product of agency expertise. Id. at 2867. With these guidelines in mind, we agree with Judges Fullam and DeMascio that the rule is arbitrary and capricious. There are several reasons why the rule cannot pass judicial muster. First, the Westat study furnishes an inadequate basis for the rule as we previously noted in our discussion of the agency’s compliance with the “basis and purpose” statement. In fact, the authors of the Westat study cautioned" }, { "docid": "19717505", "title": "", "text": "Was the Secretary’s decision to eliminate modifier units arbitrary and capricious? Plaintiffs next argue that even if 42 C.F.R. § 405.553 is consistent with section 4048(b), the Secretary’s decision to eliminate modifiers was arbitrary and capricious because the reasons given by the Secretary in support of the interim and final rules are not supported by the administrative record. The scope of review under 5 U.S.C. § 706(2)(A) (1994) is “a narrow one.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136, 153 (1971). • In determining whether an agency has acted arbitrarily and capriciously, a court must determine whether the agency’s decision “was based on a consideration of the relevant factors and whether there has been a clear error- of judgment.” Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443, 458 (1983) (internal quotation and citations omitted). An agency action may be set aside under this standard if the agency has relied on factors which Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Id. A court may not “substitute its judgment for that of the agency.” Citizens to Preserve Overton Park, 401 U.S. at 416, 91 S.Ct. at 824, 28 L.Ed.2d at 153. The Secretary determined that the elimination of modifiers would not have a substantial adverse effect on individual anesthesiologists because: (1) thirty-five percent of Medicare carriers did not previously recognize modifier units; (2) modifier units were a relatively minor portion of the total number of relative value units; and (3) anesthesiologists typically treat a mix of patients with different health conditions. 55 Fed.Reg. at 32,079. Plaintiffs argue that there was overwhelming evidence in the administrative record that anesthesiologists who work in teaching hospitals or tertiary" }, { "docid": "1051228", "title": "", "text": "” Id. 103 S.Ct. at 2866-67. An agency rule may be arbitrary and capricious. if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Id. 103 S.Ct. at 2867. See also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971) (presumption of regularity afforded agency’s decision does not shield it from a “thorough, probing, in-depth review”); City of West Chicago v. United States Nuclear Regulatory Commission, 701 F.2d 632, 648 (7th Cir.1983). There is no contention here that the Secretary relied on factors other than those Congress intended her to consider. The purpose of this review, therefore, is to determine whether the Secretary entirely failed to consider important aspects of the malpractice problem or offered an explanation for the Malpractice Rule that runs counter to the evidence before the agency. The hospitals’ attack on the Malpractice Rule as arbitrary and capricious focuses primarily on the Westat study, since the Secretary issued the Rule based almost exclusively on the findings in the study. The hospitals argue that the Westat study, and hence the rulemaking record, is so deficient that the Secretary’s implementation of the Rule was arbitrary and capricious. The Westat study was sponsored by the Department of Health, Education, and Welfare (predecessor agency to the Department of Health and Human Services) to analyze the frequency and type of malpractice claims and awards between July 1, 1976, and October 31, 1976. The study had a very broad scope, its general purpose being to determine the factors influencing the frequency of occurrence of malpractice claims and the size of awards, so that the level and rate of increase of medical malpractice insurance premiums might be reduced in order to achieve the general policy objective of controlling the cost of health" }, { "docid": "2746111", "title": "", "text": "for the actual costs of obtaining malpractice insurance for Medicare patients. Id. at 1471-72. We find the reasoning of the Seventh Circuit persuasive and see no need to add extensive discussion of our own. We make the following brief additional comments. A. Under 5 U.S.C. § 706, we are required to reject an agency rule which is arbitrary and capricious. The Supreme Court has recently reiterated the standards for this evaluation. Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). A rule is arbitrary and capricious if “the agency [fails to] articulate a satisfactory explanation for its action, including a ‘rational connection between the facts found and the choice made.’ ” Id. 103 S.Ct. at 2866-67, quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 246, 9 L.Ed.2d 207 (1962). “Normally, an agency rule would be arbitrary and capricious if the agency ... entirely failed to consider an important aspect of the problem, [or] offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” 103 S.Ct. at 2867. The Secretary did not offer a plausible explanation for the Malpractice Rule or consider several important aspects of the problem it was intended to address. Indeed, the Secretary failed to substantiate her conclusion that a problem ever existed, namely, that Medicare was paying a disproportionate amount of G & A costs. She arrived at this conclusion through several leaps in reasoning. She began with the premise, derived from the Westat Study, that “malpractice awards for Medicare ... patients are significantly lower in amount than losses for other patient population.” 15 Fed.Reg. 15,745 (1979). From this she concluded that “Medicare pay[s] a disproportionate amount of malpractice [premium] costs.” Id. And from this and the observation that malpractice costs are a significant part of the G & A pool, she finally concluded that Medicare was paying" }, { "docid": "1051227", "title": "", "text": "complies with the procedural requirements of the APA, in particular the statement of basis and purpose required by 5 U.S.C. § 553(c). 5 U.S.C. § 706(2)(D) (1982). The last issue is whether the Rule violates the Medicare Act. Cases invalidating the Malpractice Rule, see supra note 1, have based their decisions variously on some or all of the above rationales. We begin by discussing whether the Secretary violated the APA in promulgating the Rule, first substantively and then procedurally, and then move on to address whether the Rule violates the Medicare Act. A. Arbitrary and Capricious The scope of review under the “arbitrary and capricious” standard is narrow, for we are not permitted to substitute our own judgment for that of the agency. Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). The agency is required, however, to “examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ” Id. 103 S.Ct. at 2866-67. An agency rule may be arbitrary and capricious. if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Id. 103 S.Ct. at 2867. See also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971) (presumption of regularity afforded agency’s decision does not shield it from a “thorough, probing, in-depth review”); City of West Chicago v. United States Nuclear Regulatory Commission, 701 F.2d 632, 648 (7th Cir.1983). There is no contention here that the Secretary relied on factors other than those Congress intended her to consider. The purpose of this review, therefore, is to determine whether the Secretary entirely failed to consider important aspects of the malpractice problem" }, { "docid": "4758749", "title": "", "text": "in concluding that its facility would not so significantly affect the human environment that a more detailed study of consequences was necessary. See River Road Alliance v. Corps of Engineers, 764 F.2d 445, 450 (7th Cir.1985), cert. denied, 475 U.S. 1055, 106 S.Ct. 1283, 89 L.Ed.2d 590 (1986). The Seventh Circuit has said that when reviewing a finding of “no significant impact,” courts should inquire whether the agency took a “hard look” at the relevant factors and made a decision that was neither arbitrary nor capricious. See Van Abbema v. Fornell, 807 F.2d 633, 637 (7th Cir.1986). From these cases, we conclude that we should apply the “arbitrary or capricious” standard of review. The Supreme Court has recently explained the application of that standard of review, which it described as a factual inquiry, in a case involving a slightly different aspect of agency decision-making under NEPA: [T]he reviewing court “must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” This inquiry must “be searching and careful,” but “the ultimate standard of review is a narrow one.\" Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 109 S.Ct. 1851, 1861, 104 L.Ed.2d 377 (1989) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971)). The Court went on to say that courts must ensure that agencies make reasoned decisions based on the relevant factors. Id. The Supreme Court has also explained that an agency’s decision may be arbitrary or capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983). 2. The" }, { "docid": "4411272", "title": "", "text": "each requires us to engage in a “substantial inquiry.” Overton Park, 401 U.S. at 415, 91 S.Ct. at 823; Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 284, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974). Although an agency’s decision is entitled to a presumption of regularity, “that presumption is hot to shield [the agency’s] action from a thorough, probing, in-depth review.” Overton Park, 401 U.S. at 415, 91 S.Ct. at 823. Under the arbitrary and capricious standard, we ascertain whether the agency examined the relevant data and articulated a rational explanation for its decision. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983). In reviewing the agency’s explanation, we determine whether the agency considered the relevant factors and whether it made a clear error of judgment. Id. at 43, 103 S.Ct. at 2866-67. Normally, we set aside agency action as arbitrary and capricious if the agency has relied on factors which Congress has not intended for it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Id. As the reviewing court, we may not compensate for such deficiencies by supplying a reasoned basis for the agency’s action that the agency itself has not given. Id. Evidence is substantial under the APA if it is enough to justify, if the trial were to a jury, refusal to direct a verdict on a factual conclusion. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1575 (10th Cir.1994); see also Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). Under the substantial evidence test, we consider conflicts in the record and specifically define those facts which support the agency’s decision. See Olenhouse, 42 F.3d at 1576. “This requires a plenary review of the record as it existed before" } ]

[ { "docid": "11470190", "title": "", "text": "of the market might have on effective competition therein. It follows that a mere showing that the contract itself involves a substantial number of dollars is ordinarily of little consequence. Id. at 329, 81 S.Ct. at 629. The Supreme Court has not attempted to reconcile the approaches, and we need not attempt to do so here, since it is plain that Dillon failed to satisfy the less exacting inquiry made in Standard Oil. In Standard Oil the government, which complained of contracts requiring dealers to purchase gasoline and TBA exclusively from the defendant, showed that the challenged contracts bound some 6,000 service stations in the geographic market involved. 337 U.S. at 295, 69 S.Ct. 1051. Similar showings were made in other Clayton Act cases ultimately decided by the Court. E. g., Fashion Originators’ Guild of America, Inc. v. FTC, 312 U.S. 457, 461-62, 61 S.Ct. 703, 85 L.Ed. 949 (1941); see International Salt Co. v. United States, 332 U.S. 392, 394-95, 68 S.Ct. 12, 92 L.Ed. 20 (1947); International Business Machines Corp. v. United States, 298 U.S. 131, 132-36, 56 S.Ct. 701, 80 L.Ed. 1085 (1936); United Shoe Machinery Corp. v. United States, 258 U.S. 451, 454-57, 42 S.Ct. 363, 66 L.Ed. 708 (1922). Dillon, on the other hand, proved Albion’s percentage market share but did not show what portion, if any, of the market had been pre-empted by an exclusivity arrangement with the distributors. We do not mean to intimate that a seller cannot violate the Clayton Act by entering an exclusive dealing contract with a single buyer, see Standard Fashion Co. v. Magrane-Houston Co., 258 U.S. 346, 42 S.Ct. 360, 66 L.Ed. 653 (1922), or that Dillon was bound to prove such an arrangement with each and every one of Albion’s distributors. However, proof of percentage market share and dollar volume alone, without any proof of the breadth of exclusive dealing, is inadequate. . The Colgate doctrine has been re-examined by the Supreme Court on numerous occasions. See Simpson v. Union Oil Co., 377 U.S. 13, 17, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964); United States v. Parke," } ]

[ { "docid": "22890697", "title": "", "text": "effect, if any, a split product would have as being or not being evidence of a conspiracy. Plaintiff claims that the agreement, if in fact there was an agreement, had its effect to limit competition among the motion picture exhibitors. Assuming arguendo, that this is true, it would not have damaged plaintiff since the effect would have been that the plaintiff would have had to bid only against the Ambassador or the State depending upon which distributor he was dealing with. It would have in effect made it easier for the plaintiff to obtain pictures since he would not have had to bid against as many exhibitors as he would have, had there been no split product. There is not any evidence that the effect of this split of product, if in fact there was a split, was to foreclose the plaintiff from being allowed to license films or to compete in the bidding and negotiation for the films. In Viking Theatre Corporation v. Paramount Film Distributing Corp., 320 F.2d 285 at 292, 293 (3rd Cir., 1963), the Court said: “The plaintiff argues preliminarily that a split system, which, as here, does not include all exhibitors in the competitive area, constitutes a per se violation of the antitrust laws. It is not argued that all split systems are illegal; the substance of the plaintiff’s argument is that those which do not include all exhibitors are per se illegal. We do not agree. We have heretofore noted that each exhibitor was at all times afforded the opportunity to license the pictures of each distributor notwithstanding the split. There is no evidence that any exhibitor requesting participation in the split of product would have been excluded. “ * * * There is no evidence in this case that the split system, standing alone, had this effect, or was so intended. Therefore, we decline to hold the split system to be per se illegal, and we do not consider the system, standing alone, as evidence of a conspiracy to violate the antitrust laws.” The anti-trust laws do not require that a business cut" }, { "docid": "1429857", "title": "", "text": "business vis-a-vis his customers or distributors he is attempting to compete more effectively against the manufacturers and suppliers of other brands. The result will be vigorous interbrand or industry-wide competition. See id. at 54-56, 97 S.Ct. at 2559-2560. On the other hand, the rule of per se illegality for horizontal agreements is based on another economic assumption — that when business entities which operate at the same market level reach an agreement as to the conduct of their businesses, there is a strong likelihood that the net effect will be to restrict the output of products in an entire industry, thereby restraining interbrand competition. Such restraints in turn thwart such goals as consumer welfare and the efficient allocation of resources: “[HQorizontal” agreements among competitors ... threaten the achievement of antitrust goals by eliminating competition among the participants and thereby allowing them to enhance their collective profits to the detriment of consumers. P. Areeda, supra note 36, at 16. . As the court in Com-Tel pointed out, the arrangement in Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959), was condemned even though there was only one conspirator on the boycotted level — the numerosity requirement was satisfied at the boycotting level. Conversely, in United States v. General Motors, 384 U.S. 127, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966), horizontal numerosity existed at the boycotted level, among the target’s competing distributors, all of whom were parties to the boycotting agreement. In Blackburn v. Crum & Forster, 611 F.2d 102 (5th Cir.), cert. denied, 447 U.S. 906, 100 S.Ct. 2989, 64 L.Ed.2d 856 (1980), a panel of the former Fifth Circuit stated that the per se rule against concerted refusals to deal applies only when “the plaintiff, the excluded party, is on the same competitive level with one member of the conspiracy. In other words, in such cases it may be proper to infer anticompetitive motive and effect because the conspiracy has a horizontal aspect.” Id. at 104. Because there was no evidence of agreement between the alleged conspirators in Blackburn, the foregoing statement was" }, { "docid": "22890692", "title": "", "text": "The testimony revealed in the other depositions was to the same effect. Plaintiff attempts to claim that this is evidence of circuit buying, but again this Court does not agree. One would not expect the distributors’ representative to attempt to license just one picture at each trip to the buyer’s office. He would not be expected to license one picture, leave the office, walk around the block and then come back into the office and license another picture. The mere fact that the distributors and the exhibitor or his buying agent licensed more than one picture for more than one town at one sitting is not per se conspiracy or even evidence of a conspiracy. Again, there does not appear to be any evidence of a common plan, scheme or common design, but just the fact that the operations were carried out in the most economical way possible. Block buying, as the plaintiff insists, is illegal per se, but this does not mean to say that films may not be licensed more than one at a time. Block buying becomes illegal only when there is a requirement that the individual buyer purchase or license one film in order that he be able to license another, but films may be sold in blocks or groups where there is no requirement, express or implied, for purchase of more than one film. Krinsley v. United Artists Corp., 119 F.Supp. 665 (N.D.Ill.1954), United States v. Paramount Pictures, Inc., 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260 (1948). Plaintiff also alleges as evidence of a conspiracy that there was a substantially uniform structure of runs and clearances in effect in Raleigh on the products of the defendant distributors and the defendant exhibitors. Plaintiff, in his brief, through counsel, states: “It should be noted that the statements in paragraph 3 that there were no move-over runs, franchises, master agreements, master contracts, or blanket deals, or formular deals is also, of course, factual. However, those particular practices are only background to the present conspiracy, and have not been relied upon by plaintiff with regard to the" }, { "docid": "17551810", "title": "", "text": "that bar retailers from selling franchised products from locations other than those specified are analyzed under the rule of reason). Unlike the cases cited above, however, here there are a number of horizontal competitors involved. Thus, this case more closely resembles the horizontal nature of United States v. General Motors Corp., 384 U.S. 127, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966), a case that the Supreme Court treated as a group boycott with per se implications. In General Motors, the Supreme Court found a group boycott where a group of automobile dealers had joined together to force their manufacturer, General Motors, to assist them in ending the practice of some dealers that were reselling their automobiles to discounters. See id. at 143-44, 147, 86 S.Ct. 1321. Other cases fit this mold as well. See, e.g., Big Apple BMW, 974 F.2d at 1376 (analyzing an alleged agreement among supplier BMW North America and several of its dealers to prevent a potential price-cutting competitor from receiving a franchise as a horizontal group boycott); Sweeney, 637 F.2d at 114 (holding that when a manufacturer terminates a distributor’s supply pursuant to an agreement with several distributors, these actions make out a horizontal § 1 claim); cf. Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 212-13, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959) (applying a similar horizontal analysis under § 2 of the Sherman Act where manufacturers and distributors had conspired among themselves and with a major retailer to deprive another retailer access to product lines). The common principle we glean from these cases is that a conspiracy is horizontal in nature when a number of competitor firms agree with each other and at least one of their common suppliers or manufacturers to eliminate their price-cutting competition by cutting his access to supplies. From this perspective, Rossi’s asserted conspiracy is indistinguishable from those put forth in General Motors, Klor’s, Big Apple BMW and Sweeney—namely, “joint action to eliminate [a] discounter! ] from participation in the market,” General Motors, 384 U.S. at 144, 86 S.Ct. 1321—and thus, the defendants’ characterization of the conspiracy Rossi alleges" }, { "docid": "23050462", "title": "", "text": "concerted action between horizontal competitors do not constitute per se unlawful group boycotts. Rather, the refusals should be treated as vertical restraints, and will be subject to rule-of-reason analysis unless the refusals are price-related, cf. Monsanto, or are designed to enforce underlying restrictions that would otherwise be subject to per se analysis, see, e.g, Jefferson Parish Hospital Dist. No. 2 v. Hyde, 466 U.S. 2, 9-11, 104 S.Ct. 1551, 1556-58, 80 L.Ed.2d 2 (1984) (certain tying arrangements). Our analysis of Lomar’s group boycott claim begins with the conduct found unlawful in Klor’s. There, the Supreme Court applied the per se rule to a small retailer’s group boycott claim which alleged a conspiracy between a number of major appliance manufacturers and Broadway-Hale, a competing retailer. The complaint alleged that the manufacturers had “conspired among themselves and with Broadway-Hale either not to sell to Klor’s or to sell to it only at discriminatory prices and highly unfavorable terms.” 359 U.S. at 209, 79 S.Ct. at 708 (emphasis added). The Court observed that the allegations disclosed a classic group boycott, long held forbidden by the antitrust laws. Id. at 212, 79 S.Ct. at 709. However, the Court specifically distinguished the group boycott in that case from an exclusive distributorship, noting that the plaintiffs complaint alleged “a wide combination consisting of manufacturers, distributors and a retailer.” Id. at 213, 79 S.Ct. at 710. Despite this language in Klor’s, Lomar argues that the plaintiff there alleged a conspiracy involving a single competitor organizing a conspiracy with several suppliers. According to Lomar, the briefs of the parties in Klor’s demonstrate that “the theory of Klor’s case was that Broadway-Hale used its buying power to obtain agreements from each manufacturer to cease dealing with Klor’s,” and that, like Lomar, Klor’s did not allege a horizontal conspiracy among the various manufacturers. Reply Brief of Appellant at 13. We question the validity of interpreting the clear language of the Klor’s opinion by reference to the litigants’ briefs. However, we note that the plaintiff in Klor’s specifically alleged “a conspiracy between all the respondents,” Brief of Petitioner at 30, Klor’s," }, { "docid": "1417990", "title": "", "text": "That is, defendant manufacturers and distributors were the suppliers of exhibitors, a commodity essential to the successful operation of a trade show. Although Full Draw did not directly buy this commodity (indeed, the manufacturers and distributors paid Full Draw for the privilege of being exhibitors), the manufacturers and distributors were paid in the currency of a forum for access to retail dealers who might purchase their archery products. Viewing the relationship between Full Draw and defendants in this light, Full Draw’s alleged injury from defendant’s unlawful group boycott exists at the customer level — and defendants do not dispute that a customer’s injury can be antitrust injury. Alternatively, another characterization of the second amended complaint could focus on AMMO’s role in defendants’ alleged group boycott. After all, the boycott of the BTS was alleged to have involved not only defendant manufacturers and distributors whom defendants and the district court characterize as customers of the BTS. The boycott also involved defendant AMMO — a direct competitor to Full Draw in the archery trade show market — and apparently other non-customer defendants (e.g., a trade publication) who had employees active in AMMO or otherwise assisted in the boycott. Defendants do not contend that a boycott by a direct competitor and others essential to the operations of the plaintiff cannot be unlawful, and we do not believe they could make such an argument. See Northwest Wholesale, 472 U.S. at 293, 105 S.Ct. 2613 (“Cases to which this Court has applied the per se approach have generally involved joint efforts by a firm or firms to disadvantage competitors by either directly denying or persuading or coercing suppliers or customers to deny relationships the competitors need in the competitive struggle.” (quotations and citation omitted)); Klor’s, 359 U.S. at 209, 212, 79 S.Ct. 705 (finding per se illegal group boycott involving a “wide combination consisting of manufacturers, distributors, and a retailer,” brought about by the retailer against a competing retailer). Once again, even if the district court correctly stated the law regarding customer boycotts of a producer, Full Draw’s second amended complaint would state a cause" }, { "docid": "4907273", "title": "", "text": "dealing with . . . would-be competitors ...” Sullivan, Antitrust 231. The only case cited, however, is Klor’s in which a single firm induced concerted action by manufacturers and distributors not to deal with plaintiff. Moreover the observation should be read in context with the following statement appearing at pages 261-62: Now suppose that plurality is lacking at each of these levels and that a retailer, such as the defendant in Klor’s, seeks to protect itself from competition by inducing a single supplier, a manufacturer of TVs, to sell only to it. Klor’s in a pointed dictum tells us that the holding in that case does not reach such an arrangement, usually called an exclusive distributorship. A single firm, hoping to attain competitive advantage, apparently can induce at least one supplier to deal only with it without falling under the shadow of the per se rule concerning boycotts. The distinction does not turn upon the lack of enough concerted action to constitute a contract, combination or conspiracy. The agreement between the manufacturer and the dealer supplies that. The distinction can be rationalized, broadly, by reference to the fact that if a buyer ties up only one supplier, firms seeking to compete with the buyer will still have access to suppliers of other competing goods. Indeed, the Supreme Court has implied by way of dicta that the legality of such an exclusive franchise, or exclusive dealership as it is sometimes called, depends upon availability of substitutes. An exclusive franchise is, of course, a vertical restraint; a buyer imposes on the seller a restriction on the seller’s market conduct. It can be best analyzed and understood in relation to similar restraints where a firm at one horizontal level imposes restrictions upon firms at other horizontal levels from which the first firm buys or to which it sells. Here, then, we shall leave the matter, having noted only that the boycott rule does not apply; . . . . See, United States v. Arnold, Schwinn & Co., 388 U.S. 365, 376, 87 S.Ct. 1856, 1864, 18 L.Ed.2d 1249 (1967): At the other extreme," }, { "docid": "1417991", "title": "", "text": "and apparently other non-customer defendants (e.g., a trade publication) who had employees active in AMMO or otherwise assisted in the boycott. Defendants do not contend that a boycott by a direct competitor and others essential to the operations of the plaintiff cannot be unlawful, and we do not believe they could make such an argument. See Northwest Wholesale, 472 U.S. at 293, 105 S.Ct. 2613 (“Cases to which this Court has applied the per se approach have generally involved joint efforts by a firm or firms to disadvantage competitors by either directly denying or persuading or coercing suppliers or customers to deny relationships the competitors need in the competitive struggle.” (quotations and citation omitted)); Klor’s, 359 U.S. at 209, 212, 79 S.Ct. 705 (finding per se illegal group boycott involving a “wide combination consisting of manufacturers, distributors, and a retailer,” brought about by the retailer against a competing retailer). Once again, even if the district court correctly stated the law regarding customer boycotts of a producer, Full Draw’s second amended complaint would state a cause of action for antitrust, injury to a competitor of defendant AMMO. 2. Injury Reflects Anticompetitive Effects of Group Boycott. In its second amended complaint, Full Draw made the following allegation of antitrust injury: The actions of Defendants unduly restrain, hinder and suppress competition between FDP [Full Draw] and Defendant AMO [sic] trade show in the trade show business and interstate commerce. The actions of Defendants have directly and proximately caused “anti-trust injury” because they have resulted in elimination of FDP as an exhibitor, thereby directly and substantially reducing “output” of exhibitor space and directly and substantially reducing the ability of the consumers of such space to purchase exhibitor space and display their products and services, and archery dealers from purchasing admission to such an exhibition for the purpose of viewing products and services and otherwise transacting business. Because FDP produced one of only two archery business trade shows in the United States, the purposeful and wrongful destruction of FDP’s business by Defendants directly injured competition as well as injuring FDP. This allegation adequately states that" }, { "docid": "23680985", "title": "", "text": "the Sherman Act as group price fixing. (Klor’s, Inc. v. Broadway-Hale Stores, Inc., 1959, 359 U.S. 207, 212, 79 S.Ct. 705, 3 L.Ed.2d 741) . We realize that the facts of Klor’s are different, in that there a number of manufacturers were charged with boycotting a single distributor by not selling it their products, while here a manufacturer and its distributors are charged with combining to exclude rival products from a part of the market by requiring distributors, including Walker, not to deal in those products. But the difference, while significant, is not, to us, controlling. Essentially, what is charged is a conspiracy between Lucky and some of its other distributors, the purpose of which is that none of them shall carry Coors or any other competitive beers. This conspiracy is directed primarily at the makers of those beers, of whom Walker is not one. But if a conspiracy to establish such a boycott of those beers is illegal, as we think it may be, and if one of its intended and actual effects is to cut off a supply of Lucky’s beer to a distributor who does not join the conspiracy, we can see no reason why that distributor does not have a valid claim for relief. It is clear from Parke, Davis, supra, that a manufacturer who conspires with others to accomplish what he could lawfully accomplish when acting alone, may violate section 1 of the Sherman Act. This is obviously correct, as section 1 does not outlaw all restraints of trade, but only a “contract, combination * * * or conspiracy, in restraint of trade.” Thus, it is not an answer to rely upon Colgate as appellees do here. It is also true that both Parke, Davis, supra, and Klor’s, supra, involved conduct that has been held to be illegal per se. We know of no case that holds that contracts between a manufacturer and distributors' of his product whereby the latter agree to act as exclusive distributors, that is, to handle his product alone, are illegal per se. Most of the cases that have considered the" }, { "docid": "8475567", "title": "", "text": "1515 (vertical restraint not per se illegal unless it includes agreement on price or price levels). Thus, in order to bring its boycott claim within the per se rule, Spectators’ must point to a horizontal conspiracy, in other words, a conspiracy between competitors, rather than a vertical conspiracy between firms at different levels of distribution. See Sharp Electronics, 485 U.S. at 730 and n. 4, 108 S.Ct. 1515 (explaining distinction between horizontal agreement and vertical agreement with horizontal effects); Nova Designs, Inc. v. Scuba Retailers Ass’n, 202 F.3d 1088, 1092 (9th Cir.2000) (where only parties to agreement are not competitors of each other, no horizontal boycott). To make a per se case, the horizontal agreement need not be between competitors of the victim. In Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959), a boycott arranged by a single competitor of the victim retailer, but carried out by a “wide combination” consisting of manufacturers and distributors, as well as the competing retailer, led to per se liability. Id. at 212-13, 79 S.Ct. 705. NYNEX harmonized Klor’s with its rule limiting per se analysis to horizontal boycotts: “Although Klor’s involved a threat made by a single powerful firm, it also involved a horizontal agreement among those threatened, namely, the appliance suppliers, to hurt a competitor of the retañer who made the threat.” 525 U.S. at 135, 119 S.Ct. 493. Cf. Northwest Stationers, 472 U.S. at 294, 105 S.Ct. 2613 (per se liability applied to “efforts by a firm or firms to disadvantage competitors by either directly denying or persuading or coercing suppliers or customers to deny relationships the competitors need in the competitive struggle.”)(internal quotations omitted and emphasis added). Spectators’ relies on a theory of per se liability, but its arguments are inconsistent with NYNEX. Spectators’ contends: “[A] group boycott formed for the simple purpose of eliminating a trader from the market, or putting a company out of business, is always illegal, regardless of who is involved in the conspiracy.” This pronouncement is simply contrary to NYNEX, where the Supreme Court rejected the argument" }, { "docid": "4907272", "title": "", "text": "case must, however, be read in the context in which it arose, i. e., an acquisition by Volkswagen of another manufacturer of air conditioners, alleged to violate Section 7 of the Clayton Act. The Court specifically stated “that the § 7 damage claims and the Sherman Act claims against Distributor, VW and [VW’s manufacturing] Subsidiary are all interrelated.” 532 F.2d at 684, n. 13; see, also, 532 F.2d at 682. In the context of that case, the alleged vertical conspiracy to exclude plaintiff from supplying air conditioners to Volkswagen’s independent distributor could have been found to have a tendency to exclude plaintiff from the significant market or submarket for Volkswagen — compatible air conditioners. The case is of no help to plaintiff here, in the absence of any facts indicating an impact on competition in a market. . Plaintiffs cite Sullivan for the proposition that “it is conceivable that only a single firm at the blockaded level may succeed in coercing or inducing suppliers or customers (or, for that matter, one important supplier ...) from dealing with . . . would-be competitors ...” Sullivan, Antitrust 231. The only case cited, however, is Klor’s in which a single firm induced concerted action by manufacturers and distributors not to deal with plaintiff. Moreover the observation should be read in context with the following statement appearing at pages 261-62: Now suppose that plurality is lacking at each of these levels and that a retailer, such as the defendant in Klor’s, seeks to protect itself from competition by inducing a single supplier, a manufacturer of TVs, to sell only to it. Klor’s in a pointed dictum tells us that the holding in that case does not reach such an arrangement, usually called an exclusive distributorship. A single firm, hoping to attain competitive advantage, apparently can induce at least one supplier to deal only with it without falling under the shadow of the per se rule concerning boycotts. The distinction does not turn upon the lack of enough concerted action to constitute a contract, combination or conspiracy. The agreement between the manufacturer and the dealer" }, { "docid": "1417983", "title": "", "text": "882. 1. Illegality of Group Boycott. As an initial matter, we conclude that the second amended complaint alleges a group boycott in violation of § 1 of the Sherman Act. Classic group boycotts involving conspirators whose market position are horizontal to each other and who “cut off access to a supply, facility, or market necessary to enable the boycotted firm to compete,” are generally per se illegal under § 1. Northwest Wholesale Stationers v. Pacific Stationery & Printing Co., 472 U.S. 284, 294, 105 S.Ct. 2613, 86 L.Ed.2d 202 (1985); see Klor’s v. Broadway-Hale Stores, Inc., 359 U.S. 207, 212, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959) (finding agreement among multiple manufacturers and distributors and one retailer to boycott another retailer to be per se violation); TV Communications Nehvork, Inc. v. Turner Network Television, Inc., 964 F.2d 1022, 1027 (10th Cir.1992) (“A group boycott is another per se violation of section one. However, a group boycott can only exist between conspirators who compete at the same market level.” (citation omitted)); Coffey v. Healthtrust, Inc., 955 F.2d 1388, 1392 (10th Cir.1992) (same). “While the competitors need not be at the same market level as the plaintiff, there must be concerted activity between two or more competitors at [the] same market level.” Coffey, 955 F.2d at 1392 (quotations and citation omitted). In this case, defendants’ alleged boycott of the BTS involved an agreement among, inter alia, members of AMMO— archery manufacturers and distributors— whose market positions are horizontal to each other as buyers of exhibition space at archery trade shows competing for dealer business. In addition, defendants allegedly controlled the essential supply of major manufacturing and distributing exhibitors necessary to enable an archery trade show to survive competitively. Further, defendants allegedly cut off this essential supply of manufacturing and distributing exhibitors for the naked purpose of destroying Full Draw as a competitor to AMMO. Construing these allegations in the light most favorable to Full Draw, as we must, we conclude that they state a violation of § 1 of the Sherman Act. Nevertheless, both the district court and defendants discredited Full Draw’s" }, { "docid": "23050461", "title": "", "text": "to the presence or absence of a price-related motive. See Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284, 290, 105 S.Ct. 2613, 2617, 86 L.Ed.2d 202 (1985). Lomar has not alleged that the suppliers contracted, combined, or conspired among themselves, but rather that GF separately coerced each of the suppliers into boycotting Lomar. The District Court accordingly characterized the alleged group boycott as “a rimless, spoked wheel, with GF and Art Stone as the hub and each of the three manufacturers as a spoke.” Lomar I, 627 F.Supp. at 111. Hence, the sole issue for our resolution on this claim is a legal one— whether a distributor’s separate conspiracies with several suppliers to deny a competing distributor access to the suppliers’ products constitutes a group boycott. Lomar argues that the application of the per se rule in Klor’s Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959), compels a similar result in this case. We disagree, and hold that refusals to deal involving no concerted action between horizontal competitors do not constitute per se unlawful group boycotts. Rather, the refusals should be treated as vertical restraints, and will be subject to rule-of-reason analysis unless the refusals are price-related, cf. Monsanto, or are designed to enforce underlying restrictions that would otherwise be subject to per se analysis, see, e.g, Jefferson Parish Hospital Dist. No. 2 v. Hyde, 466 U.S. 2, 9-11, 104 S.Ct. 1551, 1556-58, 80 L.Ed.2d 2 (1984) (certain tying arrangements). Our analysis of Lomar’s group boycott claim begins with the conduct found unlawful in Klor’s. There, the Supreme Court applied the per se rule to a small retailer’s group boycott claim which alleged a conspiracy between a number of major appliance manufacturers and Broadway-Hale, a competing retailer. The complaint alleged that the manufacturers had “conspired among themselves and with Broadway-Hale either not to sell to Klor’s or to sell to it only at discriminatory prices and highly unfavorable terms.” 359 U.S. at 209, 79 S.Ct. at 708 (emphasis added). The Court observed that the allegations disclosed a classic" }, { "docid": "22987965", "title": "", "text": "appellee, WDI and unnamed co-conspirators engaged in an unlawful combination and conspiracy in unreasonable restraint of trade and commerce. This combination consisted in part of a continuing agreement, understanding and concert of action to engage in a group boycott of plaintiff, to willfully fail and refuse to provide plaintiff with products and supplies, including point-of-sale advertising and promotional materials, and to refrain from doing business with plaintiff. III. PER SE v. RULE OF REASON ANALYSIS Appellant urges that a per se analytical standard is appropriate. Appellant relies on Klor’s, Inc. v. Broadway-Hale Stores, 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959), for the proposition that dealer terminations resulting from group boycotts where manufacturers and distributors conspire to deprive a distributor of the goods he needs to compete, are per se violations of section 1 of the Sherman Act. Klor’s concerned several manufacturers and distributors who conspired amongst themselves and with a major retailer, Broadway-Hale, either not to sell to Klor’s or to sell to it only at discriminatory prices and highly unfavorable terms. Klor’s is distinguishable in that it alleges a widespread horizontal and vertical combination. Klor’s expressly stated: “This is not a case of a single trader refusing to deal with another, nor even of a manufacturer and a dealer agreeing to an exclusive distributorship.” 359 U.S. at 212, 79 S.Ct. at 709. The Court thus implied that the latter situations do not lend themselves to a per se standard of analysis. Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 761, 104 S.Ct. 1464, 1469, 79 L.Ed.2d 775, reh’g. den., 466 U.S. 994, 104 S.Ct. 2378, 80 L.Ed.2d 850 (1984), reaffirmed that only vertical arrangements accompanying or implementing price-fixing schemes are to be considered per se violations of the antitrust laws; other vertical arrangements are to be tested under the Rule of Reason. See also Car Carriers v. Ford Motor Company, 745 F.2d 1101,1108 (7th Cir.1984), cert, denied, 470 U.S. 1054, 105 S.Ct. 1758, 84 L.Ed.2d 821 (1985). Though the Second Amended Complaint alleges that unnamed co-conspirators combined with Gallo and WDI in a concerted refusal" }, { "docid": "23093474", "title": "", "text": "services from one supplier rather than another should (after examining the buyer’s reasons or justifications) apply the per se rule if it finds no legitimate business reason for that purchasing decision. We conclude no boycott-related per se rule applies and that the plaintiff here must allege and prove harm, not just to a single competitor, but to the competitive process, i. e., to competition itself. Our conclusion rests in large part upon precedent, for precedent limits the per se rule in the boycott context to cases involving horizontal agreements among direct competitors. The agreement in Fashion Originators’ Guild involved what may be called a group boycott in the strongest sense: A group of competitors threatened to withhold business from third parties unless those third parties would help them injure their directly competing rivals. Although Klor’s involved a threat made by a single powerful firm, it also involved a horizontal agreement among those threatened, namely, the appliance suppliers, to hurt a competitor of the retailer who made the threat. See 359 U. S., at 208-209; see also P. Areeda & L. Kaplow, Antitrust Analysis: Problems, Text, and Cases 333 (5th ed. 1997) (defining paradigmatic boycott as “collective action among a group of com petitors that may inhibit the competitive vitality of rivals”); 11H. Hovenkamp, Antitrust Law ¶ 1901e, pp. 189-190 (1998). This Court emphasized in Klor’s that the agreement at issue was “not a ease of a single trader refusing to deal with, another, nor even of a manufacturer and a dealer agreeing to an exclusive distributorship. Alleged in this complaint is a wide combination consisting of manufacturers, distributors and a retailer.” 859 U. S., at 212-213 (footnote omitted). This Court subsequently pointed out specifically that Klor’s was a ease involving not simply a “vertical” agreement between supplier and customer, but a case that also involved a “horizontal” agreement among competitors. See Business Electronics, 485 U. S., at 734. And in doing so, the Court held that a “vertical restraint is not illegal per se unless it includes some agreement on price or price levels.” Id., at 735-736. This precedent makes" }, { "docid": "1793855", "title": "", "text": "Dahl’s claim in substance was reduced to two contentions: first, that defendant Roy Cooper Company had itself attempted to monopolize the first-run quality picture exhibition market in violation of § 2; and, second, that appel- lees had conspired to exclude the Paris Theatre from the first-run picture market in violation of §§ 1 and 2. On motion of defendants-appellees, summary-judgment in their favor was entered; the District Court concluded that no genuine issue of material fact remained for trial. From that judgment this appeal was taken. We affirm. Dahl’s attempt-to-monopolize claim rests entirely on its allegation that an employee of Cooper told an employee of Dahl that Cooper would drive Dahl out of business if Dahl chose to compete. Such a manifestation of intent to triumph in the competitive market, in the absence of evidence of unfair, anti-competitive or predatory conduct, is not enough to establish a violation of § 2. See Hiland Dairy, Inc. v. Kroger Company, 274 F.Supp. 966 (E.D.Mo.1967), aff’d 402 F.2d 968 (8th Cir. 1968). Plaintiff can establish a violation of § 1 or § 2 if he can show an agreement between two or more distributors or distributors and exhibitors, see, e. g., Klor’s, Inc. v. Broadway-Hale Stores, 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959); Bigelow et al. v. RKO Pictures, Inc., 327 U.S. 251, 66 S. Ct. 574, 90 L.Ed.2d 652 (1946), or between two or more exhibitors, United States v. Griffith, 334 U.S. 100, 68 S.Ct. 941, 92 L.Ed. 1236 (1948), to exclude plaintiff from the market. However, a mere refusal to deal by an individual distributor not acting in agreement with anyone else is not by itself a violation of the antitrust laws. See Klor’s, Inc. v. Broadway-Hale Stores, supra, 359 U.S. at 212, 79 S.Ct. 705; Lawlor v. National Screen Service Corp., 270 F.2d 146 (3d Cir. 1959), cert. denied, 362 U.S. 922, 80 S.Ct. 676, 4 L.Ed.2d 742 (1960). A fortiori, plaintiff has no antitrust claim where its failure to obtain desired films is attributable to its own mistakes or failure to request them. See Royster Drive-In" }, { "docid": "22649959", "title": "", "text": "those of petitioner. And, in fact, the course of dealings between petitioner and Cities over the strenuous objection of the other defendants gives ample evidence of precisely this similarity of interest. As Waldron himself candidly stated in the course of his deposition, he would not have originally included Cities as a co-conspirator had he not conceived the idea that the ultimate failure of Cities to deal with him was the result of some sort of payoff. Yet as described, supra, at 263-264, 267, Cities has introduced overwhelming evidence that no such payoff was ever made or promised to it in return for an agreement not to deal with Waldron, a showing which petitioner has in no way rebutted. Petitioner is thus forced to take the position that the one fact that he has produced, Cities’ failure to make a deal with him for Iranian oil, is sufficiently probative of conspiracy to entitle him to resist summary judgment. In support of this position, petitioner relies heavily on Interstate Circuit, Inc. v. United States, 306 U. S. 208 (1939), and Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U. S. 537 (1954). In Interstate Circuit a group of motion picture distributors, at the request of two large first-run exhibitors, simultaneously imposed identical restrictions on subsequent showings of the films they distributed. These restrictions had the effect of forcing subsequent-run exhibitors to raise their admission prices substantially in the direction of the prices then charged by the competing first-run exhibitors at whose behest the restrictions were imposed. This in turn tended to restrain competition among the exhibitors by depriving the subsequent-run exhibitors of much of their ability to compensate for their competitive disadvantages by selling tickets at a considerably lower price than that charged by the first-run exhibitors. Other restrictions prohibiting the showing of double-features in subsequent-run theatres were imposed with similar anticompetitive effects. There was no direct evidence showing that the distributors agreed with one another to impose the identical restrictions, but it was shown that each distributor knew that all the other distributors had been approached with the' same proposal" }, { "docid": "7829352", "title": "", "text": "growers to plant its seed under the regular contract, but merely in strips for tests. Viewing the evidence in a light most favorable to U & I, we conclude the alleged anticompetitive actions here simply do not constitute a per se conspiracy to fix the price of sugar beets. That Betaseed and the WSBGA developed a joint committee to attempt to secure U & I’s acceptance of Betaseed’s seeds under the regular contract can hardly be construed as “naked restraint” without any purpose except stifling competition. Broadcast Music v. C. B. S., 441 U.S. at 20. Similarly, that growers violated their contracts with U & I by growing sugar beets from Betaseed’s seed neither shows that Betaseed and the WSBGA encouraged them to do so, nor shows that the WSBGA and Betaseed conspired to fix the prices of beets or restrain the sale of U & I seed. U & I’s evidence simply fails to show the existence of an agreement and the circumstantial evidence of business behavior here precludes such an inference. See Interstate Circuit Inc. v. United States, 306 U.S. 208, 59 S.Ct. 467, 83 L.Ed. 610 (1939). In Interstate Circuit Inc., a group of motion picture distributors, at the request of two large first-run exhibitors, simultaneously imposed identical restrictions on subsequent showings of the films they distributed. These restrictions had the effect of forcing subsequent run exhibitors to raise their admission prices substantially in the direction of the prices charged by the competing first-run exhibitors who requested the imposed restrictions. Other restrictions were imposed with similar anticom-petitive effect. Although there was no direct evidence showing that the distributors agreed among themselves to impose identical restrictions, each distributor knew that all other distributors had been approached with the same proposal and that the imposition of the restriction would be feasible only if adhered to by all distributors. It was also shown that the identical action taken had the likelihood of increasing profits to each distributor. From these facts, the Court held that a tacit agreement to restrain competition between the distributors could be properly inferred. The reason that" }, { "docid": "16886593", "title": "", "text": "boycott\" device used in such classic boycott cases as Eastern States Retail Lumber Dealers' Ass'n, and Fashion Originators' Guild of America, Inc. v. FTC, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941). We doubt that the modern Supreme Court would use the boycott label to describe, or the rubric to condemn, a joint venture among competitors in which participation was allowed to some but not all, compare Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284, 105 S.Ct. 2613, 86 L.Ed.2d 202 (1985), with Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945), although such a restriction might well fall after a more complete analysis under the rule of reason. What is even more clear is that a purely vertical arrangement, by which (for example) a supplier or dealer makes an agreement exclusively to supply or serve a manufacturer, is not a group boycott. See Klor's, Inc. v. Broadway-Hale Stores, 359 U.S. 207, 212, 79 S.Ct. 705, 709, 3 L.Ed.2d 741 (1959); Corey v. Look, 641 F.2d 32, 35 (1st Cir. 1981). Were the law otherwise, every distributor or retailer who agreed with a manufacturer to handle only one brand of television or bicycle would be engaged in a group boycott of other manufacturers. There are multiple reasons why the law permits (or, more accurately, does not condemn per se) vertical exclusivity; it is enough to say here that the incentives for and effects of such arrangements are usually more benign than a horizontal arrangement among competitors that none of them will supply a company that deals with one of their competitors. No one would think twice about a doctor agreeing to work full time for a staff HMO, an extreme case of vertical exclusivity. Imagine, by contrast, the motives and effects of a horizontal agreement by all of the doctors in a town not to work at a hospital that serves a staff HMO which competes with the doctors. In this case, the exclusivity arrangements challenged by U.S. Healthcare are vertical in form, that is, they comprise" }, { "docid": "1429786", "title": "", "text": "the plurality of “refusals” necessary for the arrangement to be called a group boycott. Compare Radiant Burners v. Peoples Gas Light & Coke Co., 364 U.S. at 659-60, 81 S.Ct. at 367 (refusal by association comprised of gas companies and gas burner manufacturers to sell gas to purchasers of plaintiff manufacturer’s gas burner was illegal per se as a group boycott); Klor’s, Inc. v. Broadway-Hale Stores, 359 U.S. at 212-13, 79 S.Ct. at 709-10 (agreement by manufacturers to sell only to defendant department store and not plaintiff’s department store constituted group boycott); Fashion Originators Guild v. FTC, 312 U.S. at 465-66, 61 S.Ct. at 706 (refusal by manufacturers of textiles and original design dresses to sell to retailers purchasing “copycat” designs from competing manufacturers constituted illegal group boycott); with Abadir & Co. v. First Mississippi Corp., 651 F.2d 422, 426-28 (5th Cir.1981) (manufacturer’s agreement with one dealer not to sell to other dealer did not constitute group boycott); Red Diamond Supply, Inc. v. Liquid Carbonic Corp., 637 F.2d 1001, 1004-07 (5th Cir.) (conspiracy between manufacturer and distributor not to deal with plaintiff distributor did not constitute group boycott), cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d 102 (1981); Daniels v. All Steel Equipment, Inc., 590 F.2d 111, 113 (5th Cir.1979); H. & B. Equipment Co. v. International Harvester, 577 F.2d 239, 245-46 (5th Cir.1978); Oreck Corp. v. Whirlpool Corp., 579 F.2d 126, 131-32 (2d Cir.) (en banc) (manufacturer’s termination of plaintiff-dealer at behest of competing dealer was not a group boycott), cert. denied, 439 U.S. 946, 99 S.Ct. 340, 58 L.Ed.2d 338 (1978); Universal Brands, Inc. v. Philip Morris, Inc., 546 F.2d at 33-34 (no per se violation for manufacturer or supplier to agree with distributor to give him exclusive franchise unless part of an illegal boycott); Packard Motor Car Co. v. Webster Motor Car Co., 243 F.2d at 420-21 (manufacturer’s termination of small dealers at request of large dealer was exclusive dealing arrangement and not illegal per se). Thus, the touchstone of an illegal group boycott or concerted refusal to deal is the agreement between two or" } ]

[ { "docid": "6663501", "title": "", "text": "INS, 658 F.2d at 1317-19. The weight to be accorded such evidence is a matter for the Court’s discretion. . On April 5, 1982 the Court granted plaintiffs’ motion for an Order allowing service of incomplete declarations and use of fictitious names. Plaintiffs requested the Order because of their fear that information regarding their experiences in El Salvador will be turned over to Salvadoran authorities by the INS and used against plaintiffs should they ever return or against family members still in El Salvador. The quoted testimony is taken from the unexpurgated exhibits filed with the Court. . In response to telephone inquiries regarding travel to El Salvador, the State Department has indicated that it (a) considers any travel to El Salvador to be extremely dangerous; (b) recommends that no travel there be undertaken, even on official business; and (c) cannot offer its protection to United States citizens travel-ling in El Salvador. Plaintiffs’ Exhibit 7. . See note 4 supra. . The Court’s power to take judicial notice of grave conditions in other countries where all pertinent reports disclose similar accounts is well-established. See United States ex rel. Fong Foo v. Shaughnessy, 234 F.2d 715 (2d Cir. 1955) (judicial notice of political conditions in People’s Republic of China); United States ex rel. Mercer v. Esperdy, 234 F.Supp. 611, 616 (S.D.N.Y.1964) (judicial notice of political repression in Haiti); Matter of Joseph, 13 I. & N. 70, 72 (1968) (same); see generally Fed.R.Evid. 201(b). . The INS does not break down by nationality the number of aliens who accept voluntary departure prior to the commencement of deportation proceedings. The figures compiled for all aliens apprehended during the fiscal years from 1977 through 1980 indicate that 75% were eligible for, agreed to, and were granted voluntary departure prior to the issuance of the order to show cause which begins the deportation process. See Defendants’ Exhibit L ¶ 12. Attorney Linton Joaquin, who handles a large number of Salvadoran clients, testified before the Court and estimated that 80-90% of his clients had signed voluntary departure agreements before securing legal advice. See Transcript of April" } ]

[ { "docid": "6663499", "title": "", "text": "denied defendants’ Motion to Strike plaintiffs’ exhibits concerning conditions in El Salvador. Defendants argued that the Court could not consider any factual evidence regarding conditions in El Salvador which contradicted the findings made by the Executive Branch and the State Department. This argument is unsupported by any authority and the courts have routinely considered evidence of conditions in foreign countries. See, e.g., McMullen v. INS, 658 F.2d 1312, 1317 (9th Cir. 1981); Coriolan v. INS, 559 F.2d 993, 1004 (5th Cir. 1977); Berdo v. INS, 432 F.2d 824 (6th Cir. 1970). Evidence of conditions in El Salvador is relevant and material to plaintiffs’ claim that they face “irreparable injury” in the form of removal to El Salvador if preliminary relief is denied. The Court cannot evaluate the seriousness of the alleged injury without reference to the challenged exhibits, as well as the exhibits submitted by the defendants. Cf. Haitian Refugee Center v. Smith, 676 F.2d 1023 at 1042 (5th Cir. 1982) (evidence of conditions in Haiti is admissible for limited purpose as long as court does not rule on merits of asylum claims). The Court also denied defendants’ motion to strike several of plaintiffs’ exhibits for failure to comply with evidentiary rules. See Order Dated May 11, 1982. The strict evidentiary rules governing a trial on the merits and a motion for summary judgment under Federal Rule of Civil Procedure 56 are not applicable to a motion for a preliminary injunction under Rule 65. See 11 C. Wright & A. Miller, Federal Practice & Procedure § 2949, at 470-71 (1973); 7 Moore’s Federal Practice ¶ 65.04[3], at 65-64 to -65 (2d ed. 1982); Bracco v. Lackner, 462 F.Supp. 436, 442 n.3 (N.D.Cal.1978). The Court recognizes that many of plaintiffs’ exhibits contain hearsay and other impermissible matter which could not be admitted at trial. However, in addition to the need to act promptly when bringing a preliminary injunction motion, it is particularly important that the Court allow plaintiffs to present their case with whatever evidence is available to them when that evidence involves conditions in a foreign country. See McMullen v." }, { "docid": "22826499", "title": "", "text": "before the court.” Haitian Refugee Center v. Smith [HRC], 676 F.2d 1023, 1041 n. 48 (5th Cir. Unit B 1982); see also United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267, 74 S.Ct. 499, 503, 98 L.Ed. 681 (1954). The discretionary decisions of executive officials in the immigration area are therefore subject to judicial review, but the scope of that review is extremely limited. The Supreme Court has repeatedly emphasized that “the power over aliens is of a political character and therefore subject only to narrow judicial review.” Mow Sun Wong, 426 U.S. at 101 n. 21, 96 S.Ct. at 1904 n. 21; see also Fiallo v. Bell, 430 U.S. 787, 793 n. 5, 97 S.Ct. 1473, 1478 n. 5, 52 L.Ed.2d 50 (1977) (“Our cases reflect acceptance of a limited judicial responsibility under the Constitution . .. with respect to the power of Congress to regulate the admission and exclusion of aliens.... ”). Because the political branches share concurrent authority over immigration matters, it follows that both executive and congressional actions are to be regulated by the judiciary according to the same narrow standard of review. See Mathews v. Diaz, 426 U.S. at 81-82, 96 S.Ct. at 1892-1893 (“The reasons that preclude judicial review of political questions also dictate a narrow standard of review of decisions made by Congress or the President in the area of immigration.... ”) (emphasis added); Harisiades v. Shaughnessy, 342 U.S. 580, 589, 72 S.Ct. 512, 519, 96 L.Ed. 586 (1952) (immigration matters “are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference”) (emphasis added). The Supreme Court’s ruling in Klein-dienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) underlines the judiciary’s limited role in reviewing the discretionary decisions of executive officials in the immigration field. In that ease the Court considered a challenge to the Attorney General’s refusal to grant a waiver permitting a foreign Marxist to visit the United States on a lecture tour. Although the first amendment rights of American citizens were implicated by the Attorney" }, { "docid": "6663427", "title": "", "text": "101-03, 96 S.Ct. 1895, 1904-05, 48 L.Ed.2d 495 (1976); Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950); Illinois Migrant Council v. Pilliod, 540 F.2d 1062, 1068 n.5, modified, 548 F.2d 715 (7th Cir. 1976); Haitian Refugee Center v. Civiletti, 503 F.Supp. at 470-73. The Court agrees with the defendants that it has no constitutional authority to determine the nation’s foreign policy, but, by the same token, the Court cannot constitutionally avoid its duty to hear due process challenges to governmental action simply because those challenges touch on foreign relations. Cf. Chadha v. INS, 634 F.2d 408, 419 (9th Cir. 1980), cert. granted, 454 U.S. 812, 102 S.Ct. 87, 70 L.Ed.2d 80 (1981) (court considered immigrant’s claim that statute violated separation of powers doctrine); Olejario v. United States, 629 F.2d 204 (2d Cir. 1980), cert. denied, 450 U.S. 980, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981) (political question doctrine did not bar jurisdiction of claim by naturalization applicant that executive branch had violated Congress’ intent to grant citizenship to certain Filipino nationals); see generally Baker v. Carr, 369 U.S. 186, 211-13, 82 S.Ct. 691, 706-07, 7 L.Ed.2d 663 (1962). The Court therefore concludes that it has jurisdiction over the parties and subject matter of this action pursuant to 28 U.S.C. § 1331 and 8 U.S.C. § 1329. Venue is properly laid over all causes of action pursuant to 28 U.S.C. § 1391(b) & (e)(1), (2). V. MOTION FOR PROVISIONAL CLASS CERTIFICATION Pursuant to Federal Rule of Civil Procedure 23(b)(2), plaintiffs move this Court for a provisional certification of the following classes of persons: All citizens and nationals of El Salvador eligible to apply for political asylum under 8 U.S.C. § 1158 who (a) have been or will be taken into custody pursuant to 8 U.S.C. § 1357 by agents of the Immigration and Naturalization Service; or (b) subsequent to June 2, 1980, requested, or will in the future request, political asylum within the United States prior to being served with an order to show cause pursuant to 8 C.F.R. § 242.1, whose applications for" }, { "docid": "23346309", "title": "", "text": "where the translation of the asylum application was nonsensical, the accuracy and scope of the hearing translation are subject to grave doubt, appellant misunderstood the nature and finality of the proceeding, and a credible claim which developed 'following translation was not reviewed. See Gonzales v. Zurbrick, supra (inadequate translation in deportation hearing); see also United States ex rel. Negron v. New York, 434 F.2d 386 (2 Cir.1970) (inadequate translation in state court criminal trial). Augustin’s true claim has not been given any ' scrutiny, either by the Board of Immigration Appeals or the State Department. We agree with the Ninth Circuit that “[i]t is particularly important that an applicant for relief under 243(h) have a reasonable opportunity to present his proofs, for the stakes are high.” Kovac v. INS, 407 F.2d 102, 108 (9 Cir.1969). We reverse and remand to the district court with instructions to release Augustin from custody unless within sixty days .the INS affords him an opportunity to initiate a new asylum application and affords him a ■hearing, with counsel, in conformity with applicable statutes and regulations and in accordance with this opinion. The mandate shall issue forthwith. Reversed and remanded. . The Tonton Macoutes (Volontaires de la Secu-rite Nationale) are paramilitary forces supporting Haitian President Jean Claude Duvalier. They frequently are held responsible for illegal arrests and extrajudicial executions. As one court has stated, the Tonton Macoutes \"did indeed make persons disappear. The bad persons visited by the Macoutes, however, were not criminals, but enemies of Duvalier.... [Virtually any encounter with a member of the security forces is a political encounter.” Haitian Refugee Center v. Civiletti, 503 F.Supp. 442, 497, 500 (S.D.Fla.1980), modified sub nom. Haitian Refugee Center v. Smith, 676 F.2d 1023 (5 Cir.1982). . Ms. Davis claims that twice before the exclusion hearing she gave the translator a set of written questions for Augustin, to be returned with his answers. The service repeatedly promised (up to the day before the hearing) to send Ms. Davis the translated answers, but never did so. The service also failed to deliver to Ms. Davis its translation of" }, { "docid": "822610", "title": "", "text": "Court. See, e. g., Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976) (unconstitutional prison conditions) aff’d and remanded 559 F.2d 283 (5th Cir. 1977). . See, e. g., Fleurinor v. Immigration and Naturalization Service, 585 F.2d 129, 133 (5th Cir. 1978) (Amnesty International Report on political conditions in Haiti not material to particular plaintiffs asylum claim) (alternate holding). But see Coriolan v. Immigration and Naturalization Service, 559 F.2d 993 (5th Cir. 1977) (case remanded in light of Amnesty International Report). This court declined to reach the issue of general conditions in Haiti in Sannon v. United States, Case No. 74-428-Civ-JLK (final order entered January 7, 1980, as amended April 11, 1980). . For example, in Paul v. Immigration and Naturalization Service, 521 F.2d 194, 199 (5th Cir. 1975), the court relied on a single magazine article for the proposition that “[m]any Haitians seek refuge in this country, not for political reasons, but for economic ones.” Although the Court took note of this “fact,” it declined to require an immigration judge to take judicial notice of conditions in Haiti. Id. . In Sannon the government agreed that publication of its new regulations beyond publication in the Federal Register was necessary to inform Haitians of their rights under the new regulations. The court duly ordered public notice of the regulation change in all of the publications suggested by the government, although for a substantially longer period than the period initially suggested by the government. The court also ordered notice to all Haitians of their new rights verbally and in writing when they enter the United States and in advance of expulsion. Apparently, it is this last requirement to which the government objects. . The old regulations provide as follows: § 108.1 Application. An application for asylum by an alien who is seeking admission to the United States at a land border port or preclearance station shall be referred to the nearest American consul. An application for asylum by any other alien who is within the United States or who is applying for admission to the United States at an airport or seaport of" }, { "docid": "6663425", "title": "", "text": "§ 1329. Because plaintiffs’ challenges relate to procedures employed by the INS prior to the commencement of deportation hearings, these challenges can and must be brought in a district court. See Fleurinor v. INS, 585 F.2d 129, 136 n.6 (5th Cir. 1978); Haitian Refugee Center v. Civiletti, 503 F.Supp. 442, 457-61 (S.D.Fla.1980), aff’d as modified, 676 F.2d 1023 at 1033-36 (5th Cir. 1982). Further, to require plaintiffs to raise their claims in deportation hearings would effectively ensure that some plaintiffs never raise these claims at all. Because of the voluntary departure process, many of the proposed class members will return to El Salvador without ever participating in deportation hearings. It is well-settled that exhaustion will not be required when the administrative remedies are inadequate. See, e.g., NLRB v. Industrial Union of Marine & Shipbuilding Workers, 391 U.S. 418, 426 n.8, 88 S.Ct. 1717, 1722 n.8, 20 L.Ed.2d 706 (1968). Administrative remedies are of no avail to those plaintiffs who will never enter the deportation process. Defendants argue additionally that this Court lacks jurisdiction over plaintiffs’ claim that they are entitled to notice of the right to apply for political asylum because of the political question doctrine. Defendants claim that a finding in plaintiffs’ favor would encourage asylum applications and would amount to a foreign policy determination which should be made only by Congress or the Executive Branch. This argument fails for two reasons. First, a finding that notice of the asylum process is required in no way amounts to a determination that Salvadorans should be granted asylum or even that they should receive special consideration because of the civil war in El Salvador. Second, although the Court recognizes the great deference owed to Congress and the President in the immigration field, the deference owed the INS is more circumscribed. The Court clearly has the power to determine whether the INS is complying with the laws and Constitution of the United States and whether it is depriving Salvadorans of their rights to due process, as alleged by the plaintiffs in this case. See Hampton v. Mow Sun Wong, 426 U.S. 88," }, { "docid": "22932508", "title": "", "text": "Haitian’s asylum application and without regard to the constitutional, treaty, statutory, and administrative rights of the plaintiff class. Haitian Refugee Center v. Civiletti, 503 F.Supp. 442, 457 (S.D.Fla.1980). Briefly, the plaintiffs attacked actions taken by immigration judges in the context of deportation hearings, the manner in which asylum interviews were scheduled and conducted, and the manner in which decisions on the asylum claims were made and rendered. The plaintiffs also alleged that, through all of the enumerated practices, the defendants engaged in unlawful discrimination on the basis of national origin and denied the due process rights of the class members. In its final order of judgment entered July 2, 1980, the district court held: “The manner in which INS treated the more than 4,000 Haitian plaintiffs violated the Constitution, the immigration statutes, international agreements, INS regulations and INS operating procedures. It must stop.” 503 F.Supp. at 452. Accordingly, the district judge ordered the defendants to “submit for the court’s approval a detailed plan providing for the orderly, case-by-case, nondiscriminatory and proeedurally fair reprocessing of the plaintiffs’ asylum applications to the District Director before individuals competent to hear such applications upon a full record which will permit meaningful judicial review.” Id. at 532. The court further enjoined the defendants from deporting any member of the plaintiff class and from proceeding further with any deportation hearings or any asylum applications involving the plaintiff class until the court had approved the defendants’ plan for reprocessing. Id. at 532-33. On appeal the government attacks the district court’s exercise of jurisdiction, its finding of fifth amendment equal protection and due process violations, its entry of findings on the conditions of life in Haiti, and its comments on the burden of proof borne by asylum applicants. For the reasons developed below, we affirm the judgment of the district court with modifications. Before we address various issues raised by the government, however, it is important that we set out the administrative and factual background against which this litigation developed. I A An alien seeking political asylum in the United States has two avenues available to him. First," }, { "docid": "23346310", "title": "", "text": "with applicable statutes and regulations and in accordance with this opinion. The mandate shall issue forthwith. Reversed and remanded. . The Tonton Macoutes (Volontaires de la Secu-rite Nationale) are paramilitary forces supporting Haitian President Jean Claude Duvalier. They frequently are held responsible for illegal arrests and extrajudicial executions. As one court has stated, the Tonton Macoutes \"did indeed make persons disappear. The bad persons visited by the Macoutes, however, were not criminals, but enemies of Duvalier.... [Virtually any encounter with a member of the security forces is a political encounter.” Haitian Refugee Center v. Civiletti, 503 F.Supp. 442, 497, 500 (S.D.Fla.1980), modified sub nom. Haitian Refugee Center v. Smith, 676 F.2d 1023 (5 Cir.1982). . Ms. Davis claims that twice before the exclusion hearing she gave the translator a set of written questions for Augustin, to be returned with his answers. The service repeatedly promised (up to the day before the hearing) to send Ms. Davis the translated answers, but never did so. The service also failed to deliver to Ms. Davis its translation of a letter from Augustin providing information relevant to the asylum claim. . Ms. Davis also says that her ability to prepare was impaired because background materials which the Dade County Bar Association (sponsor of the pro bono representation program) had promised to send arrived only the day before the scheduled hearing. . Appellant has since produced a list of witnesses presently in the United States. . Our Court is not the first to be concerned with the ability of Creole translators in Haitian immigration proceedings. In Jean v. Nelson, 711 F.2d 1455, 1463 (11 Cir.1983), vacated, 727 F.2d 957 (11 Cir.1984) (en banc), the Eleventh Circuit stated that \"[ojverwhelming evidence established that Creole translators were so inadequate that Haitians could not understand the proceedings ñor be informed of their rights.” See Louis v. Meissner, supra, 530 F.Supp. at 927. . To compound our difficulty, we are unable to verify the accuracy of the translations because apparently there are no tapes or Creole transcriptions. . An alien may challenge a final order of exclusion in a" }, { "docid": "9828204", "title": "", "text": "426 U.S. 67, 81, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976) (“[T]he responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government”); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 94 L.Ed. 317 (1950) (authority over immigration matters stems not just from legislative power “but is inherent in the executive power to control the foreign affairs of the nation.”); Fong Yue Ting v. United States, 149 U.S. 698, 711, 13 S.Ct. 1016, 37 L.Ed. 905 (1893) (it is the “right to exclude or to expel all aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, being an inherent and inalienable right of every sovereign and independent nation, essential to its safety, its independence, and its welfare....”). Under this doctrine, the Attorney General is charged with the administration and enforcement of all laws relating to the immigration and naturalization of aliens, and she does so with virtually no interference from the courts. The Supreme Court has “long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 97 L.Ed. 956 (1953); see also Diaz, 426 U.S. at 82, 96 S.Ct. 1883 (noting “narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization”). Nor does Rosales contest the government’s right to designate him an excluda-ble alien and attempt to remove him from this country. The principle that there is no constitutional right to enter this country, see Knauff, 338 U.S. at 542, 70 S.Ct. 309, is not under review in this case. The Supreme Court has made clear that an attempt to enter this country is considered a request for a privilege rather than an assertion of right, because “the power to admit or exclude aliens is a sovereign prerogative.” See Landon v. Plasencia, 459 U.S. 21," }, { "docid": "12729154", "title": "", "text": "premise: that people without overt political activity, or minority political opinions, are unlikely to be the victims of political persecution. Solid as it sounds, this proposition is not graven in stone. It may be, in fact, that Haitian citizens can become the focus of government persecution without ever taking any conventionally “political” action at all. Petitioner Coriolan has testified that his cousin was arrested, and never heard from again, after he refused to give a Ton-ton Macoute member a piece of cloth. Other cases have contained similar allegations. In Matter of Pierre, 15 I & N Dec. (Int.Dec. # 2433, Sept. 16, 1975), a Haitian alleged that his father, a supporter of the pre-Duvalier government and a sergeant in the Haitian armed forces, had attempted to leave the armed forces in 1960, but had been murdered, and the family home burnt, because of his politics. Other members of the family allegedly had been murdered, too. (The INS denied the 243(h) claim). See Paul v. INS, 521 F.2d 194 (5th Cir. 1975) (extensive allegations of government murders, beatings and jailings) (§ 243(h) relief refused); Hyppolite v. INS, 382 F.2d 98 (7th Cir. 1967). (Haitian alleged murder of her father, and friends’ reports of police inquiries as to her whereabouts) (§ 243(h) relief refused); Gena v. INS, 424 F.2d 227 (5th Cir. 1970) (alien alleged fear of the Tontons stemming from the interest one Tonton had in his wife) (§ 243(h) relief denied). Although almost all 243(h) claims by Haitians, and other aliens, appear to be unsuccessful, there are exceptions. One such was United States ex rel. Mercer v. Esperdy, 234 F.Supp. 611 (S.D.N.Y.1964). There the district court felt that Mercer’s evidence lent her claim at least prima facie credibility, and held the INS’ refusal to reopen its proceedings to consider the claim arbitrary and capricious. Mercer’s allegations of danger from the Duvalier government were extensive. The case, however, is striking for another reason as well. The district court took judicial notice “that the present regime in Haiti may well represent a danger of physical persecution to persons such as” Mercer, 234" }, { "docid": "22826498", "title": "", "text": "to INS District Directors, is broad, but it is not without limits. The district court below reached a similar destination by a different route, suggesting that “[plaintiffs are persons within the territorial jurisdiction of the United States and they cannot be denied their liberty without due process of law.” Louis III, 544 F.Supp. at 990. We have rejected the argument that the entry doctrine fiction is inapplicable in the context of parole decisions, so we conclude that the district court erred to the extent that it based its jurisdiction to review these determinations on constitutional grounds. The basis for jurisdiction here must be found elsewhere, in the principle that agencies must respect the statutory limits on their discretion, see, e.g., Lloyd Sabaudo, 287 U.S. at 335, 53 S.Ct. at 170; Mahler, 264 U.S. at 44, 44 S.Ct. at 288; Gegiow, 239 U.S. at 9, 36 S.Ct. at 3; see also supra note 11, and in the recognition that “agency deviation from its own regulations and procedures may justify judicial relief in a case otherwise properly before the court.” Haitian Refugee Center v. Smith [HRC], 676 F.2d 1023, 1041 n. 48 (5th Cir. Unit B 1982); see also United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267, 74 S.Ct. 499, 503, 98 L.Ed. 681 (1954). The discretionary decisions of executive officials in the immigration area are therefore subject to judicial review, but the scope of that review is extremely limited. The Supreme Court has repeatedly emphasized that “the power over aliens is of a political character and therefore subject only to narrow judicial review.” Mow Sun Wong, 426 U.S. at 101 n. 21, 96 S.Ct. at 1904 n. 21; see also Fiallo v. Bell, 430 U.S. 787, 793 n. 5, 97 S.Ct. 1473, 1478 n. 5, 52 L.Ed.2d 50 (1977) (“Our cases reflect acceptance of a limited judicial responsibility under the Constitution . .. with respect to the power of Congress to regulate the admission and exclusion of aliens.... ”). Because the political branches share concurrent authority over immigration matters, it follows that both executive and congressional actions are" }, { "docid": "14502173", "title": "", "text": "in an acquittal are not entitled to any legitimate law enforcement credibility whatsoever.” . Menard v. Saxbe, 162 U.S.App.D.C. 284, 498 F.2d 1017 (1974) (record of arrests may be used to determine whether appellant may be released pending appeal); United States v. Cifarelli, 401 F.2d 512 (2nd Cir.) cert. denied, 393 U.S. 987, 89 S.Ct. 465, 21 L.Ed.2d 448 (1968) (in imposing sentence, the trial judge may consider evidence of other crimes for which the defendant was not convicted); Jones v. United States, 113 U.S.App.D.C. 233, 307 F.2d 190 (1962), cert. denied, 372 U.S. 919, 83 S.Ct. 733, 9 L.Ed.2d 724 (1963) (pre-sentence report may include, and the judge may consider, records of charges not leading to conviction); 23 D.C. Code § 1321(b) (permits judicial officer, in determining the conditions of pre-trial release, to take into account defendant’s “past conduct, record of convictions, and any record of appearance at court proceedings”). . See Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953); Pena v. Kissinger, 409 F.Supp. 1182 (S.D.N.Y.1976); Note, Judicial Review of Visa Denials: Reexamining Consular Nonreviewability, 52 N.Y.U.L.Rev. 1137 (1977). . Cf. Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964) (members of the communist party successfully challenged statute denying them opportunity to obtain passports on ground of fifth amendment due process clause includes freedom of international travel). . 8 U.S.C. § 1427(a) (1970); see 3 Gordon & Rosenfield, Immigration Law & Procedure § 15.15 (1977). . Gordon & Rosenfield, supra note 23, at 15-43 — 15-44. See also Comment, Immigration Law — National Standard, Incorporation of State Law or Hybrid Test — State Definition of Adultery Utilized for Determining “Good Moral Character” in a Voluntary Departure Proceeding — Brea-Garcia v. Immigration & Naturalization Service, 51 N.Y.U.L.Rev. 1021, 1025, 1033-35 (1976). . The government contends that expungement of the record of defendant’s arrest and conviction will have no effect whatsoever on the defendant’s ability to re-enter the United States after travel abroad or ability to become a citizen. Although the precise question is not" }, { "docid": "21566567", "title": "", "text": "expenses in cases where the plaintiff prevailed, 5 U.S.C. § 552(a)(4)(E) (1988); (3) discipline an agency official guilty of arbitrary and capricious action, 5 U.S.C. .§ 552(a)(4)(F) (1988), and (4) use its contempt power to punish an agency official for disobeying a disclosure order, 5 U.S.C. § 552(a)(4)(G) (1988). FOIA does not expressly provide the district courts with jurisdiction to enjoin agency proceedings that may be related to the subject matter of a plaintiff’s FOIA request, and we are aware of no authority that has inferred such a power. The plaintiffs also argue that the district court had authority to enjoin INS proceedings under the Administrative Procedure Act and cite us to 5 U.S.C. §§ 704 & 706 (1988). Neither of those provisions authorizes the injunctive relief that the plaintiffs seek here. Those provisions deal with final agency action and agency action made reviewable by statute. As the defendants point out, in some limited circumstances federal courts have allowed suits directly attacking the processing of aliens notwithstanding the exhaustion requirements of 8 U.S.C. § 1105a(c) and notwithstanding the absence of a final administrative order. See, e.g., Jean v. Nelson, 727 F.2d 957, 979-81 (11th Cir.) (judicial intervention allowed prior to final agency decision in order to enjoin widespread practice of denying claimants’ notice of their right to present asylum claim to particular agency), cert. denied, 469 U.S. 1071, 105 S.Ct. 563, 83 L.Ed.2d 504 (1984); Haitian Refugee Center v. Smith, 676 F.2d 1023, 1033 (5th Cir.1982) (claims of “a pattern and practice by immigration officials to violate the constitutional rights of a class of aliens ... constitute wrongs which are independently cognizable in the district court under its federal question jurisdiction” (footnote omitted)). Those cases do not support judicial intervention in this case. In Smith and Jean, the court authorized judicial review of INS proceedings prior to exhaustion because of the unique circumstance that the plaintiffs were claiming widespread, systematic wrongs in their exclusion proceedings. See Jean, 727 F.2d at 980; Smith, 676 F.2d at 1033. Further, in those cases, by delaying the assertion of their claims until after they" }, { "docid": "12729155", "title": "", "text": "murders, beatings and jailings) (§ 243(h) relief refused); Hyppolite v. INS, 382 F.2d 98 (7th Cir. 1967). (Haitian alleged murder of her father, and friends’ reports of police inquiries as to her whereabouts) (§ 243(h) relief refused); Gena v. INS, 424 F.2d 227 (5th Cir. 1970) (alien alleged fear of the Tontons stemming from the interest one Tonton had in his wife) (§ 243(h) relief denied). Although almost all 243(h) claims by Haitians, and other aliens, appear to be unsuccessful, there are exceptions. One such was United States ex rel. Mercer v. Esperdy, 234 F.Supp. 611 (S.D.N.Y.1964). There the district court felt that Mercer’s evidence lent her claim at least prima facie credibility, and held the INS’ refusal to reopen its proceedings to consider the claim arbitrary and capricious. Mercer’s allegations of danger from the Duvalier government were extensive. The case, however, is striking for another reason as well. The district court took judicial notice “that the present regime in Haiti may well represent a danger of physical persecution to persons such as” Mercer, 234 F.Supp. at 616. The court then discussed conditions in Haiti, citing extensively New York Times reports of Haitian affairs. These facts “widely known and reported in the press” amounted, the court felt, to the changed circumstances necessary to justify a request to reopen the INS hearing. Hence the court finally concluded that the special inquiry officer’s disregard of these conditions and his consequent refusal to reopen proceedings constituted an abuse of discretion. In Matter of Joseph, 13 I. & N. Dec. 70 (1968), the INS approached a Haitian persecution claim in a similar spirit. Joseph’s reasons for fearing persecution were, again, extremely strong. But the Board in Joseph also invoked the judicial notice taken by the Mercer court of the “ ‘suppression of human rights and a total nonexistence of any rule of law’ . . . [and] a suspension of ‘all articles of the Constitution guaranteeing individual rights, among them being free speech, freedom from arrest and police brutality’ . . . . It is a matter of common knowledge and this Board takes" }, { "docid": "16108867", "title": "", "text": "York Action defendants in international waters, were found to have a credible fear of political persecution if returned to Haiti and are being detained on land under the exclusive control of the United States. MAHONEY, Circuit Judge, dissenting: I respectfully dissent. The majority holds that the interdiction by United States officials in international waters of individuals seeking illegally to enter the United States; the status of a leased United States naval base at Guantá-namo Bay, Cuba; and the initial determination by INS officials that Haitians at Guan-tánamo Bay may possess credible asylum claims combine to endow such Haitians with Fifth Amendment due process protection, or. at least to present serious questions in that regard. I disagree, and accordingly would vacate the preliminary injunction ordered by the district court in its entirety. The Supreme Court “has long held that an alien seeking initial admission into the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.” Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 329, 74 L.Ed.2d 21 (1982); see also Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n. 5, 73 S.Ct. 472, 477 n. 5, 97 L.Ed. 576 (1953) (“The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores.”). “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544, 70 S.Ct. 309, 313, 94 L.Ed. 317 (1950). Furthermore, the determination of procedures concerning the admissibility of aliens is not a power of Congress alone, but is also inherent in the authority of the executive branch to conduct foreign affairs. Shaughnessy, 338 U.S. at 543, 70 S.Ct. at 312. Congress has vested the Attorney General with almost complete discretion, within numerical limits, to permit immigration of refugees from outside the country’s borders. See 8 U.S.C. § 157(c) (1988 & Supp. II 1990). Thus, there is generally no right to judicial review" }, { "docid": "16108868", "title": "", "text": "21, 32, 103 S.Ct. 321, 329, 74 L.Ed.2d 21 (1982); see also Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n. 5, 73 S.Ct. 472, 477 n. 5, 97 L.Ed. 576 (1953) (“The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores.”). “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544, 70 S.Ct. 309, 313, 94 L.Ed. 317 (1950). Furthermore, the determination of procedures concerning the admissibility of aliens is not a power of Congress alone, but is also inherent in the authority of the executive branch to conduct foreign affairs. Shaughnessy, 338 U.S. at 543, 70 S.Ct. at 312. Congress has vested the Attorney General with almost complete discretion, within numerical limits, to permit immigration of refugees from outside the country’s borders. See 8 U.S.C. § 157(c) (1988 & Supp. II 1990). Thus, there is generally no right to judicial review for aliens seeking entry to this country. See Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir.1986) (Congress has power to exclude aliens from entry or prescribe conditions for entry and have executive branch enforce policy without judicial interference); Petition of Cahill, 447 F.2d 1343, 1344 (2d Cir.1971) (per curiam) (“ ‘it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.’ ”) (quoting Shaughnessy, 338 U.S. at 543, 70 S.Ct. at 312). Although the majority opinion acknowledges these principles and concedes that the IN A does not apply to Haitians at Guantanamo Bay, the majority nonetheless concludes that there are serious questions as to whether the plaintiffs are entitled to the protections of the Fifth Amendment’s Due Process Clause. First, the majority opines that the unique nature of Guantanamo Bay — that it is subject to the exclusive control of the United States and that United States criminal laws are" }, { "docid": "6663426", "title": "", "text": "claim that they are entitled to notice of the right to apply for political asylum because of the political question doctrine. Defendants claim that a finding in plaintiffs’ favor would encourage asylum applications and would amount to a foreign policy determination which should be made only by Congress or the Executive Branch. This argument fails for two reasons. First, a finding that notice of the asylum process is required in no way amounts to a determination that Salvadorans should be granted asylum or even that they should receive special consideration because of the civil war in El Salvador. Second, although the Court recognizes the great deference owed to Congress and the President in the immigration field, the deference owed the INS is more circumscribed. The Court clearly has the power to determine whether the INS is complying with the laws and Constitution of the United States and whether it is depriving Salvadorans of their rights to due process, as alleged by the plaintiffs in this case. See Hampton v. Mow Sun Wong, 426 U.S. 88, 101-03, 96 S.Ct. 1895, 1904-05, 48 L.Ed.2d 495 (1976); Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950); Illinois Migrant Council v. Pilliod, 540 F.2d 1062, 1068 n.5, modified, 548 F.2d 715 (7th Cir. 1976); Haitian Refugee Center v. Civiletti, 503 F.Supp. at 470-73. The Court agrees with the defendants that it has no constitutional authority to determine the nation’s foreign policy, but, by the same token, the Court cannot constitutionally avoid its duty to hear due process challenges to governmental action simply because those challenges touch on foreign relations. Cf. Chadha v. INS, 634 F.2d 408, 419 (9th Cir. 1980), cert. granted, 454 U.S. 812, 102 S.Ct. 87, 70 L.Ed.2d 80 (1981) (court considered immigrant’s claim that statute violated separation of powers doctrine); Olejario v. United States, 629 F.2d 204 (2d Cir. 1980), cert. denied, 450 U.S. 980, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981) (political question doctrine did not bar jurisdiction of claim by naturalization applicant that executive branch had violated Congress’ intent to grant citizenship to" }, { "docid": "6663424", "title": "", "text": "contend that plaintiffs must first exhaust the administrative review procedures provided by INS regulations, see 8 U.S.C. § 1105a(c), and then seek judicial review only in a court of appeals pursuant to 8 U.S.C. § 1105a. Defendants misinterpret the parameters of the exhaustion and exclusive jurisdiction provisions. Section 1105a vests the appellate courts with exclusive jurisdiction over all matters incident to a final order of deportation and requires the party seeking review to exhaust the administrative remedies provided by the immigration laws and regulations before bringing suit. Section 1105a does not apply, however, to denials of discretionary relief by the Immigration and Naturalization Service or to other claims unrelated to a final order of deportation, and jurisdiction over these matters remains with the district courts. See, e.g., INS v. Stanisic, 395 U.S. 62, 68 n.6, 89 S.Ct. 1519, 1523 n.6, 23 L.Ed.2d 101 (1969); Cheng Fan Kwok v. INS, 392 U.S. 206, 212, 88 S.Ct. 1970, 1974, 20 L.Ed.2d 1037 (1968); Lai Haw Wong v. INS, 474 F.2d 739, 742 (9th Cir. 1973); 8 U.S.C. § 1329. Because plaintiffs’ challenges relate to procedures employed by the INS prior to the commencement of deportation hearings, these challenges can and must be brought in a district court. See Fleurinor v. INS, 585 F.2d 129, 136 n.6 (5th Cir. 1978); Haitian Refugee Center v. Civiletti, 503 F.Supp. 442, 457-61 (S.D.Fla.1980), aff’d as modified, 676 F.2d 1023 at 1033-36 (5th Cir. 1982). Further, to require plaintiffs to raise their claims in deportation hearings would effectively ensure that some plaintiffs never raise these claims at all. Because of the voluntary departure process, many of the proposed class members will return to El Salvador without ever participating in deportation hearings. It is well-settled that exhaustion will not be required when the administrative remedies are inadequate. See, e.g., NLRB v. Industrial Union of Marine & Shipbuilding Workers, 391 U.S. 418, 426 n.8, 88 S.Ct. 1717, 1722 n.8, 20 L.Ed.2d 706 (1968). Administrative remedies are of no avail to those plaintiffs who will never enter the deportation process. Defendants argue additionally that this Court lacks jurisdiction over plaintiffs’" }, { "docid": "21543275", "title": "", "text": "§ 1255a(f) is also out of step with the rulings of other federal courts. It is at odds with three sister circuits’ interpretation of § 106 of the INA, which governs review of deportation orders. IRCA’s judicial review provision for denials of legalization applications requires that such review take place only in the course of § 106 deportation proceedings. Section 106, in turn, has its own “sole and exclusive procedure for [] the judicial review of all final orders of deportation,” 8 U.S.C. § 1105a(a), and “[a]n order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him.” Id. § 1105a(e). Notwithstanding that language, three circuit courts have held that challenges to official INS policy — whether in the form of regulations or of an officially approved program, pattern or scheme followed by immigration officials and approved by those in charge — can be directly attacked in a district court proceeding brought against the agency. See Salehi v. District Director, 796 F.2d 1286, 1290 (10th Cir.1986) (challenge to validity of regulations and to the INS’ application of them in denying plaintiffs’ applications for asylum); Jean v. Nelson, 727 F.2d 957, 979-81 (11th Cir.1984) (en banc) (challenge to an INS policy of detaining aliens pending disposition of their petitions for asylum, as being discriminatory and as having been adopted without notice and comment), aff'd, 472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985) (expressing no view on jurisdictional issues); Haitian Refugee Center v. Smith, 676 F.2d 1023, 1033 (5th Cir.1982) (challenge to an alleged INS program of unlawfully discriminatory treatment of Haitians’ petitions for asylum). Four district courts have already extended the logic of those cases to the judicial review provisions of IRCA. See Doe v. Nelson, 703 F.Supp. 713, 720-22 (N.D.Ill.1988); Immigration Assistance Project v. INS, No. C88-379R, slip op. at 10-11 (W.D. Wash. Nov. 2, 1988); Haitian Refugee Center v. Nelson, 694 F.Supp. 864, 873-74 (S.D.Fla.1988); Zambrano v. INS, No. S-88-455, slip op. at 6-7 (E.D.Cal. Aug. 9, 1988). The majority evidently believes that" }, { "docid": "23108313", "title": "", "text": "clearly applies to the present case, which has been pending since 1979. Paragraph (b) applies to those cases which were initiated after the sunset provision of the original EAJA took effect on September 30, 1984, and before the amendments were enacted. Consequently Paragraph (b) has no relevance to the case before this court. On May 9, 1979, the Haitian Refugee Center and eight individual Haitians brought a class action on behalf of over 4,000 Haitians who had petitioned for political asylum in this country. The suit challenged the legality of the “Haitian Program.” This program was instituted by the Immigration and Naturalization Service (INS) in the summer of 1978 to accelerate the processing of the applications made by Haitians for asylum. After a non-jury trial, the district court, in a lengthy opinion dated July 2, 1980, found for the plaintiffs. Haitian Refugee Center v. Civiletti, 503 F.Supp. 442 (S.D.Fla.1980) (hereinafter Haitian I). The district court ordered the government to submit a plan for reprocessing the applications for asylum to the court for its approval. The district court also enjoined further deportation proceedings against class members until the reprocessing plan had been approved by the court. The government then filed a Motion to Enter Judgment pursuant to Fed.R.Civ.P. 58. The district court denied the government’s motion on August 11, 1980, ruling that its July 2, 1980, order was “far from final.” The government then filed its Notice of Appeal on August 27, 1980, and subsequently submitted its reprocessing plan to the district court on December 24, 1980. On appeal, this court affirmed the district court’s decision with some modifications on May 24, 1982. Haitian Refugee Center v. Smith, 676 F.2d 1028 (5th Cir. Unit B 1982) (hereinafter Haitian II), and our mandate was issued on July 28, 1982. After the appeal, between August 18, 1982, and March 1, 1983, the plaintiffs filed applications for attorneys’ fees pursuant to EAJA. The matter was referred to a U.S. Magistrate, who recommended that attorneys’ fees and costs should be allowed in the amount of $221,873.86. The district court adopted the Magistrate’s report with some" } ]

[ { "docid": "22736995", "title": "", "text": "Mr. Justice Brown, after stating the case, delivered the opinion of the court. Defendant did not demur to the indictment,, nor move to quash, nor take advantage of its alleged insufficiency upon the trial, but after conviction moved in arrest of judgment upon the ground that it failed to aver with sufficient particularity the details of the offenóe, and the time and place of its commission. 1. The principal alleged defect in the indictment is set forth in the third, fourth and fifth assignments of error, which, charge that the indictment did not state facts which would constitute ah offence against the laws; in that it did not allege that the defendant sold or offered for sale foreign or domestic distilled spirits, wines or malt liquors otherwise \"than as provided by law, or any of said liquors, or to whom said liquors were sold or offered for sale, and because it did not allege that defendants had sold or offered for sale any of said liquors in quantities less than five wine gallons at the same time, and because the indictment did not allege that the defendant had not paid $25, the amount of the tax provided by the statute, and generally, because the allegations' of the indictment are only a legal conclusion, unsupported by the primary and individualizing facts which constituted an .offence, etc. By section 16 of the act of February 8, 1875, c. 36,18 Stat. 307, 310, under which defendant was convicted, it is provided that “ any person who shall carry on the business of a . . . retail liquor dealer . . . without having paid the special’ tax as required by law . . . shall, for every such offence, be fined, etc.,” and the first count of the indictment charged in the very words of this section that the defendant “did then and there wilfully, unlawfully and feloniously carry on the business of a retail liquor dealer without having paid the special tax therefor, as required by law, contrary to the statute in such case made and provided and against the peace" } ]

[ { "docid": "15566945", "title": "", "text": "the issues in the case and which were prejudicial to the rights of the appellants. In our opinion, this assignment must be sustained. The defendants were charged in the indictment with unlawfully conspiring together to commit certain offenses in vio lation of section 37 of the United States Criminal Code, R.S. § 5440 (18 U.S.C.A. § 88), prohibiting the sale of nontax paid distilled spirits (R.S. § 3281 [superseded by Act Feb. 8, 1875, § 16, 26 U.S.C.A. §§ 1184, 1397 (a)]). It was charged that the defendants sold certain distilled spirits on which the internal revenue tax was not paid for the purpose of defrauding the United States government of the taxes due thereon; and that they maintained certain rooms at apartment 21, 1421 P street, N. W., Washington, D. C., as an office and place where telephones were maintained for the purpose of spliciting, receiving, and bartering nontax paid liquor and alcohol. Various overt acts with specifications of time and place were recited under the indictment. At the trial the United States introduced evidence in support of thése charges and in the course of the trial called one John Wise as a witness who testified that he was a detective sergeant in the Metropolitan Police Department; that in April, 1934, he made an investigation of the premises 1423 P street, N. W., in Washington, D. C., and that incident to this investigation he interviewed certain of the defendants, namely, Earl Funk, Charles Edward Hawkins, Leonard Smith, Clarence Ross, and Andrew Jackson, each of whom made statements in his presence which were reduced to writing and signed by the defendants making the same. These written statements were tendered by the government in evidence, whereupon the defendants objected and their objections ‘being overruled they excepted. The written statements in question are set out in full in the record, but it seems .unnecessary to copy all of them in this opinion. They contain no reference in any manner to the sale of distilled spirits at the place referred to in the indictment or elsewhere, nor is any of the statements relevant" }, { "docid": "13024238", "title": "", "text": "BRYAN, Circuit Judge. The defendants, Harry Goldberg and Israel Goldberg, were convicted upon a joint indictment, charging that on July 29, 1919, they were carrying on the business of a retail liquor dealer without having paid the special tax required by Revised Statutes, § 3244 (Comp. St. §§ 5971, 6176, 6187). Each defendant was also convicted -upon a separate indictment charging an unlawful sale, on July 31, 1919, of distilled spirits for beverage purposes. The joint indictment is based upon Revised Statutes, § 3242 (section 5965), and the separate indictments upon the provision of the War Prohibition Act, to the effect that after June 30, 1919, and until the conclusion of the War and demobilization, it should be unlawful to' sell distilled spirits for beverage purposes. 40 Stat. at L. 1046 (Comp. St. Ann. Supp. 1919, §§ SUS^f-SllS11/^). The indictments were found November 15, 1919, and consolidated for trial by order of court upon motion of the district attorney, and without objection by defendants, or either of them. A demurrer to the joint indictment, upon the ground that the payment of tax by a retail liquor dealer has not been required by law since June 30, 1919— the effective date of the War Prohibition Act — was overruled. There was sufficient evidence that liquor was being sold at retail at a store in Savannah. Sales on at least three occasions were shown, and several thousand empty bottles and cartons with whisky labels on them were found there. The principal contention on the facts is that the place of business was being conducted, not by the defendants, but by several of their brothers. The defendant Harry Goldberg claims a case of mistaken identity. One witness seemed to be in some doubt as to the identity of this defendant, but other witnesses testified positively that he was present while sales were being made arid asserted the rights of an owner of the place, by resisting a search by government officials, and demanding to be shown their authority to make it. Besides, the defendants offered in evidence, without limitation as to its purpose" }, { "docid": "23157637", "title": "", "text": "right to charge the maintenance of a nuisance in different counts on different facts. Different testimony was required for a conviction on these counts. The testimony might be sufficient on one count and insufficient upon the other. No motion was made to elect after the government closed its case, or at the conclusion of the trial; but that is immaterial, since sentence was passed only upon one of the controverted counts. This was a permissible sentence for the offense charged. “Where conviction is had upon more than one count, the sentence, if it does not exceed that which might be imposed on one count, is good, if that count is sufficient.” Kuehn v. United States (C. C. A.) 8 F.(2d) 265. See, also, Koth v. United States (C. C. A.) 16 F.(2d) 59, just decided. Nor was the defendant twice placed in jeopardy by trial upon the new information. There was no finality of any previous adjudication. See Commonwealth v. Ellis, 101 Mass. 125; United States v. Oppenheimer, 242 U. S. 85, 37 S. Ct. 68, 61 L. Ed. 161, 3 A. L. R. 516. Primarily the defendant was engaged in supplying the public with distilled spirits contrary to law. He had in stock 395 gallons. Whether the court committed prejudicial error in admitting in evidence the stills, etc., is not apparent, since the record fails to include the testimony that was introduced at the trial. No objection was made to the testimony of the witness Powers of finding “four copper stills, two of them still warm, and 395 gallons of so-called fjaekass brandy’ in whisky barrels.” This testimony is not denied, and is conclusive of guilt on counts 3 and 4, the only counts -with which we are concerned. See Horning v. United States, 254 U. S. 135, 41 S. Ct. 53, 65 L. Ed. 185; Williams v. United States (C. C. A) 265 F. 625. This testimony being before the court without objection as to the finding of the stills, the condition in which they were found, the temperature disclosed, the 395 gallons of liquor which the witness" }, { "docid": "13422190", "title": "", "text": "“Mr. Ireland: The government rests. “Mr. Kelley: We move to dismiss the purchase. “The Court: Motion denied. “Mr. Kelley: Exception.” It may be that the record is in error, but as it stands there is nothing to show that any question'was raised as to the indictment at any stage of the proceedings. The objection to count 3, however, being without merit, it is immaterial whether or not objection was raised; tho question may be of some importance in considering other matters subsequently referred to. It is urged that tho evidence on the first and second counts was not sufficient to warrant conviction; no witness testifying that petitioner was not registered and had not paid the tax. Count 1 is based on unlawful possession of narcotics. Count 2 on the sale thereof.,, Defendant claims that the presumption of unlawful possession arising from possession of tho narcotics was defrayed when defendant took the stand and denied the purchase. It may be noted that, while defendant denied the purchase, he did not testify that ho was a registered dealer under the act and had paid the tax. However, this question as to the sufficiency of the evidence is not before us. It was in no way raised during the trial. There were no exceptions to the coart’s charge. There is not even a specific assignment of error covering it. This court has many times held that the method to require a review of the sufficiency of the evidence is to move at the conclusion of all the evidence for a directed verdict on the ground of the insufficiency thereof to sustain a verdict. This was not done, nor was there any demurrer or motion of any kind to call such matter to the attention of the trial court. According to tho long-settled practice of this court, the question is therefore not here for review, and defendant is in no position to ask of this court that it pass thereon. Gillette v. United States, 236 F. 215, 149 C. C. A. 405; Prosser et al. v. United States (C. C. A.) 265 F. 252;" }, { "docid": "9755557", "title": "", "text": "the jurisdiction of the trial court, in 1909. The Circuit Court of Appeals first held this evidence incompetent and irrelevant, and directed a reversal of die judgment. 220 Fed. 818, 819, 136 C. C. A. 406. On a motion for rehearing its attention was called to the rule in Ledbetter v. United States, 170 U. S. 610, 612, 18 Sup. Ct. 774, 42 L. Ed. 1162, that under an indictment charging a forbidden sale or sales upon a day certain evidence of sales within the jurisdiction of the court previous to the day specified in the indictment and within the time fixed by the statute of limitations is admissible to prove the offense charged, and because the four sales in 1909 were previous to the day specified in the indictment, and were within the time fixed by the statute of limitations, and the evidence of them was therefore competent as direct evidence of the substantive offense charged, the Court of Appeals held the evidence of them admissible. The decision and opinion in that case, however, is neither controlling nor persuasive upon the question of the admissibility of the evidence of the Tulsa transactions in •this case: (1) Because the latter transactions were not within the jurisdiction of the court below and evidence of them was not direct evidence of the offense charged in this case; (2) because the evidence of these transactions was barren of any evidence of any sale at Tulsa and hence of any similar offense, while in Day’s Case there was conclusive evidence of four sales in 1909; and (3) because the evidence of the transactions at Tulsa was vague and' uncertain, while that in Day’s Case was clear and conclusive. Counsel for the United States contend that the evidence of the possession of the 26 bottles of morphine at Tulsa in March, 1917, was competent to prove the intent of the defendants to carry on the business of a dealer in morphine at Oklahoma City on February 15, 1918, more than nine months after the transaction at Tulsa. The evidence relative to this contention is that" }, { "docid": "13487614", "title": "", "text": "by the public prosecutor, the public sheriff, and others charged with enforcement of the-law. As to all appellants, the evidence was sufficient to support the verdict. Errors in Admission of Evidence* Many are the errors assigned because of the rulings on the admission of evidence. To illustrate: Complaint is made because the court received over objection many search warrants, bail bonds, etc., given in connection with the arrest of still operators in this Italian section. One of the defendants, Moscar-elli, was charged with being a party to this conspiracy, and, to establish his guilt, this evidence showing that he signed all the bail bonds for those who were arrested was offered. The jury found him guilty, and he did not appeal from tho sentence pronounced on him. The evidence objected to was offered for the sole purpose of connecting him with tho conspiracy. It had no relation to any of tho appellants. The search warrani s were received because the hail bonds which Mos-carelli signed referred to the warrants, and. it was only by an examination of the warrants-that the character of the crime could be ascertained. For tho purpose for which this-evidence was offered, it was therefore proper. Likewise, appellants, who were not in any way affected by it, were not prejudiced. Complaint is also made because the court received in evidence the manufacturer’s and wholesaler’s files, as well as certain railroad-bills of lading, which corroborated the testimony of witnesses who told of the large sale» of com sugar, yeast, etc. In support of the objection, it is claimed that there was not a proper foundation laid for the admission of these exhibits. Under the rule laid down iis Cub Fork Coal Co. v. Fairmont Glass Co. (C. C. A.) 19 F.(2d) 273, we find no error in receiving this testimony. Cross-Examination of Government Witnesses. Belying upon the case of Alford v. United States, 282 U. S. 687, 51 S. Ct. 218, 75 L. Ed. 624, appellants complain because they were not permitted to inquire on cross-examination as to the residence of two government witnesses. Tho record fails to" }, { "docid": "5450295", "title": "", "text": "refresh her memory. Both court and counsel directed her to refer to her notes only for that purpose. Reliance is placed on the fact that at one time counsel for the government said to her: “Well, all right, read your notes.” This, standing by itself, might indicate that direction was given her to read her notes to the jury, but it is evident that the intention of counsel was to direct her to read over her notes for the purpose of refreshing her memory. The record shows that the witness thereupon proceeded to testify from her memory. Equally without merit are the contentions that it was error to permit the witnesses Kuchenbacher and Reynolds to testify from mem-oranda concerning conversations heard by them while in the room which Mrs: Curtis had occupied. It appeared that these witnesses, while in the room, made notes of the conversations which they heard; but, being unable to write with speed sufficient to take down all that they heard, they soon thereafter extended their notes in greater detail, and while the facts were still fresh in their memories, and in the case of Kuchenbacher a third memorandum was made, and the prior two destroyed. It is not a valid obj ection to the use of a memorandum that it has been copied from another. 28 R. C. L. 595, and cases there cited. It is not even necessary that the memorandum shall have been made by the witness himself, so long as he can speak to the facts from his own recollection. Putnam v. United States, 162 U. S. 687, 16 Sup. Ct. 923, 40 L. Ed. 1118. The objections to the testimony of these two witnesses were solely on the ground that the memoranda used by them were not the original writings; There was no suggestion of the objection now made that Kuchenbacher did not testify that his notes were correct, or that the book he used contained an accurate statement of his recollection at the time when he wrote it. There are other assignments of alleged error in the admission of testimony and" }, { "docid": "21738248", "title": "", "text": "by the witness in his ordinary course of business recording these sales. The cards were offered and received in evidence over the objection of the defendants, and were used by the witness to refresh his memory. The apparent purpose of the government in the introduction of this evidence was to show that the defendants knew that the notes were not of the value they represented them to be. To this end it was shown that one of the eodefendants and alleged conspirator, C. O. Steppe, purchased these notes from this witness at forty-four per cent, of their face value. The evidence of his purchases was admissible against C. O. Steppe to show his knowledge of the value of such notes, and his knowledge was also admissible against his alleged co-conspirators. There is some doubt in the record whether the witness was testifying of his own knowledge as to sales made by him and shown by his cards, or whether he was using such cards as memoranda to refresh his memory, or whether the cards themselves were received as documentary evidence of the facts therein stated. Some of the testimony is clearly given by the witness from his own memory. Although there was technical error in the reception of some of this evidence, in view of the more direct evidence in detail of the value of the notes and of the falsity of the representations made by the appellants, this evidence cannot be said to go to the substance of the charge or to justify a reversal of the judgment. Giordano v. U. S. (C. C. A.) 9 F.(2d) 830, 837; Rossi v. U. S. (C. C. A.) 278 F. 349; Bain v. U. S. (C. C. A.) 262 F. 664. A carbon copy of a letter purporting to be from the Lewis Oil Company addressed to appellant Berman was received in evidence. Appellants objected to the reception of this letter on the ground that there was no evidence that the letter was signed or mailed. It was proved, however, that the letter was dictated by one of the codefendants, Harris," }, { "docid": "9755556", "title": "", "text": "evidence was produced at the trial that the situation or transactions at Tulsa in March, 1917, were in any way a part of or connected with the alleged sale of the bottle of morphine by Mrs. Paris to Daisey Allen in Oklahoma City on February 15, 1918; and (3)because the intent of the defendants, or either of them, was not an essential element of the offense with which they were charged in the case at bar. From this conclusion counsel for the United States seek to escape in numerous ways. They argue that the matters in the Tulsa evi dence were admissible under the decision of the Circuit Court of Appeals of the Fourth Circuit in Day v. United States, 229 Fed. 534, 143 C. C. A. 602. In that case Day was tried and convicted of carrying on the business of a wholesale liquor dealer in 1910 and ,1911. In the trial the government proved four sales of liquor by the defendant without a license, and the payment therefor in the district, and within the jurisdiction of the trial court, in 1909. The Circuit Court of Appeals first held this evidence incompetent and irrelevant, and directed a reversal of die judgment. 220 Fed. 818, 819, 136 C. C. A. 406. On a motion for rehearing its attention was called to the rule in Ledbetter v. United States, 170 U. S. 610, 612, 18 Sup. Ct. 774, 42 L. Ed. 1162, that under an indictment charging a forbidden sale or sales upon a day certain evidence of sales within the jurisdiction of the court previous to the day specified in the indictment and within the time fixed by the statute of limitations is admissible to prove the offense charged, and because the four sales in 1909 were previous to the day specified in the indictment, and were within the time fixed by the statute of limitations, and the evidence of them was therefore competent as direct evidence of the substantive offense charged, the Court of Appeals held the evidence of them admissible. The decision and opinion in that case, however," }, { "docid": "10907724", "title": "", "text": "construed as permitting the omission from the indictment of any matter of substance; but it is applicable where the only defect complained of is that some element of the offense is stated loosely and without technical accuracy. Dunbar v. United States, 156 U. S. 185-192, 15 Sup. Ct. 325, 39 L. Ed. 390. •The true test therefore is, not whether the indlictment might possibly have been made more certain, but whether it contains every element'of the offense intended to be charged and sufficiently apprises the accused of what they must be prepared to meet, and, in case any other proceedings are taken against them for a similar offense,.whether the record shows with accuracy to what extent they may plead a former acquittal or conviction. Cochran v. United States, 157 U. S. 286-290, 15 Sup. Ct. 628, 39 L. Ed. 704; Miller v. United States, 133 Fed. 337, 66 C. C. A. 399; Brown v. United States, 143 Fed 60, 74 C. C. A. 214. It is seldom that an indictment is drawn with such 'precision that some plausible objection may not be lodged against it upon an overcritical analysis of the same, or that it might not be improved in some particulars after a trial; but an examination of this indictment in the light of the objections urged against it convinces beyond any. doubt that it charges with sufficient certainty the offense alleged to have been committed by these defendants, and that the demurrer to it was properly overruled. Errors are assigned upon the admission of evidence over the objections of the defendants; among them, that a Mrs. Cross was permitted to testify that she made an arrangement with the defendant Frank H. Horn whereby she was to have a half interest in the profits upon 28,000 shares of canceled or forfeited stock of the mining company when it was resold by him, that she was to pay nothing for the stock, but when it was resold five cents per share were to go to the company, and she was to have one half of what it sold for above" }, { "docid": "6941230", "title": "", "text": "order forms the morphine sulphate and other drugs described, for purposes other than their use, sale, and distribution by him in the legitimate practice of his profession, viz. for the purpose of their sale by him as a dealer therein, without having registered in that capacity and without having paid the special tax as such dealer. It is true that the drugs which were the subject of this count included those embraced in the counts on which conviction was had. In this sense, but in no other, was it an “omnibus count.” Clearly, an acquittal on a charge of purchasing drugs for purposes of sale as a dealer only is not an acquittal on a charge of later selling some of the drugs without the use of order form or without registering, etc., as such, or having sold any of the drugs as a dealer. In other words, a conclusion that defendant did not buy this stock for unlawful purposes is not inconsistent with a conclusion that he actually used portions of it unlawfully, especially in view of the facts appearing on the trial, that the stock which was the subject of the twenty-third count was apparently more than one-half of a whole year’s supply, and that defendant may have had a lawful use for a portion of it in connection with his sanitarium (later referred to) for the treatment of morphine addicts, and perhaps in the operation of his practice otherwise. We also think the verdict under count 28 not repugnant to or in contradiction of counts 26 and 27, all of which relate to Dawrence. 3. The A ¿mission of Testimony. — Error is assigned upon the admission, in a large number of instances, against defendant’s objection of testimony offered by the government. In a considerable number of these instances the ground of the objection is not stated, and this omis-r sion of itself disentitles defendant to complain. Robinson v. Van Hooser, C. C. A. 6, 196 Fed. 620, 624, 625, 116 C. C. A. 294, and cases cited. With one exception, the remaining assignments under this head" }, { "docid": "13024240", "title": "", "text": "or effect, testimony taken at a preliminary hearing, from which it appeared that the doubtful witness was more positive just after the arrest of the defendants than he was at the time of the trial, which occurred more than a year later. The defendant Israel Goldberg undertook to prove an alibi, but he was positively identified. The order of the court overruling the demurrer to the joint indictment is assigned as error. It is contended that section 3244, which required a special tax of retail liquor dealers, was repealed by the War Prohibition Act, and that consequently no tax was required on, the date when it is charged by the indictment that defendants engaged in the business of retail liquor dealers. Section 3244 defines a retail liquor dealer as a person who sells or offers for sale distilled spirits in less quantities than five wine gallons at the same time. Prior to the passage of the War Prohibition Act, no distinction was made between dealers engaged in the sale of distilled spirits for beverage purposes and dealers so engaged for any other purpose. Besides, the special tax was required to be paid, not only by persons engaged exclusively in the sale of liquor, but also by druggists and others who, in conned ion with their other business, sold liquor for medicinal, mechanical, or other purposes. United States v. Stafford (D. C.) 20 Fed. 720; United States v. White (D. C.) 42 Fed. 138; United States v. Morfew (D. C.) 136 Fed. 491. The joint indictment did not charge, and it was not necessary that it should charge, that the defendants were engaged in the business of selling distilled spirits for beverage purposes. The War Prohibition Act was not intended to repeal the general provisions of law for the collection of infernal revenue, and none of those provisions were intended to be or were repealed, superseded or supplanted until the Eighteenth Amendment and the National Prohibition Act (41 Stat. 305) became effective. Inasmuch as the trial occurred after the .effective date of the amendment and the National Prohibition Act, it is" }, { "docid": "3390801", "title": "", "text": "on the second count, the sentences to run consecutively. The defendant appeals from the judgment. There are twenty-one assignments of error. Most of them are not based upon any objection or exception shown in the record. Notwithstanding this, we have thought it advisable to refer to the more important of them. The indictment is attacked as being so vague and indefinite as to charge no offense. No demurrer or motion to quash was filed, but the indictment was challenged by motion in arrest of judgment. This motion was not filed, however, until February 17, 1930, whereas the judgment had been entered December 27, 1929. The motion was too late. 16 C. J., p. 1263, § 2814; 2 Encl. Pl. & Pr. 817; McInerney v. United States (C. C. A.) 147 F. 183. Moreover, there is no merit in the attack on the indietment. Apparently defendant’s counsel are under the misapprehension that the indietment was drawn under the “dealer provisions” of the Harrison Act instead of under the “any person” provisions. The distinctions are pointed out in Nigro v. United States, 276 U. S. 332, 48 S. Ct. 388, 72 L. Ed. 600, and in Butler v. United States, 20 F.(2d) 570 (C. C. A. 8). Further, it was unnecessary for the indietment to negative the exemptions mentioned in the Harrison Act. Section 8 of the act (26 USCA § 700) expressly so provides. Daugherty v. United States, 2 F.(2d) 691 (C. C. A. 8); Rothman v. United States (C. C. A.) 270 F. 31; Wallace v. United States (C. C. A.) 243 F. 300; Melanson v. United States (C. C. A.) 256 F. 783, 785. Another point urged is that there was a fatal variance between the date of sale alleged in the indictment and the date shown by the proof. We find no merit in this contention. Proof of the sale on the exact date charged was not vital, but an examination of the record discloses ample testimony that the sale was made on the exact date alleged in the indietment. It is further urged that the court erred" }, { "docid": "16452168", "title": "", "text": "treatment which he had administered to her several months before that. She denied that he had treated her but admitted that she was an addict. One of the errors assigned is that the court permitted witnesses to testify who had been convicted of felonies. It is sufficient to say that the common-law rule in that respect does not obtain in federal courts since the decision in Rosen v. U. S., 245 U. S. 467, 38 Sup. Ct. 148, 62 L. Ed. 406. It is also assigned as error that the two bottles were found in the car without a search warrant having been sued out, and that their seizure was unlawful, and that the bottles with their contents, which were offered in evidence, and all testimony pertaining thereto, should have been excluded. We consider the objection without merit. There was sufficient evidence to sustain the conclusion that the bottles of morphine and cocaine had been purchased by Lulu Armstead and were her property, that is, there was a completed sale and not an executory contract for a sale; and the jury so found in rendering a verdict of guilty. Hatch v. Oil Co., 100 U. S. 124, 25 L. Ed. 554; Leonard v. Davis, 1 Black, 476, 483, 17 L. Ed. 222; Hammer v. United States, 249 Fed. 336, 161 C. C. A. 344; Railway Co. v. Railway Co., 209 Fed. 758, 760, 126 C. C. A. 482. We cannot see how the rights of the defendant were invaded by taking from his car these two bottles of drugs that had been sold to Lulu Armstead. It is also assigned as error that the court permitted over objection one or two witnesses to testify to purchases of the drug by them from the defendant other than those charged in the indictments. Each indictment charged a particular sale. The defendant’s intent in making the sales, if he made them, was not an element of either offense. If he made them, as charged, he would be guilty of the offenses charged regardless of his intent. Where intent is an element of the" }, { "docid": "5914676", "title": "", "text": "person who carries on the business of a * * * retail liquor dealer * * * without having paid the special tax as required by law, shall, for every such offense, be fined,” etc. U. S. Comp. St. § 5965. “The offense,” says the Supreme Court, “does not consist in selling or offering for sale to a particular person distilled spirits, etc., in less quantities than five gallons at one time, but in carrying this on as a business; in other words, in the defendant holding himself out to the public as selling or offering for sale, etc.” Ledbetter v. United States, 170 U. S. 606, 610, 18 Sup. Ct. 774, 775 (42 L. Ed. 1162). One or two sales of liquor are not sufficient to convict of carrying on the business of a retail liquor dealer without having paid the special tax when made by one having none of the appliances or surroundings of retail liquor dealers, to an intimate acquaintance or friend out of the seller’s private stock not held for or offered to purchasers who should apply for it. United States v. Jackson, 26 Fed. Cas. 556, No. 15,455; United States v. Rennecke (D. C.) 28 Fed. 847; United States v. Bonham (D. C.) 31 Fed. 808, 809; Bailey v. United States, 259 Fed. 88, 89, 91, 170 C. C. A. 156, 157, 159. Under these Acts_ of Congress there was no substantial evidence at the trial below in this case that the defendant was guilty of carrying on the business of a retail liquor dealer. There was no evidence of the times when the two purchases of liquor were made to which Paine testified; there was no evidence that the liquor he testified he purchased was either foreign or domestic distilled spirits or wines or malt liquors. The legal presumption is that it was none of these because the defendant is to be presumed to be innocent until he has been proved to be guilty, and one who carries on the business of selling other liquors than distilled spirits, wines, or malt liquors,is not a" }, { "docid": "23443050", "title": "", "text": "sufficiently earmark and identify the particular offense. Count 1 charged the essential elements of the offense with sufficient certainty to enable O’Neill to prepare his defense, and after judgment to plead the record and judgment in bar of a further prosecution for the same offense. Count 1 is not duplicitous. Where a statute denounces several things as a crime and connects them with the disjunctive “or,” the pleader, in drawing an indictment, should connect them by the conjunctive “and.”- An indictment so drawn is not bad for duplicity, and where the testimony establishes the guilt of the defendant as to any one of the things charged conviction may follow. Ackley v. U. S., supra; Shepard v. U. S. (C. C. A. 9) 236 F. 73, 82; Simpson v. U. S. (C. C. A. 9) 229 F. 940, 942, 943; Rowan v. U. S. (C. C. A. 5) 281 F. 137, 188, 139; Jacobsen v. U. S. (C. C. A. 7) 272 F. 399; Crain v. U. S., 162 U. S. 625, 634, 635, 636, 16 S. Ct. 952, 40 L. Ed. 1097. We conclude that count 1 of the indictment was sufficient and that the demurrer was properly overruled. The defendant also filed a motion for a bill of particulars. This motion was denied, and the ruling is assigned as error. By this motion O’Neill sought an order requiring the government to state the exact date of the sale, the exact time of day of the sale, the exact place of the sale, which defendants were present at the sale, who delivered the drugs, the amount of money paid, who paid the money, who furnished the money to the purchaser, what kind of container the morphine was in, the markings on the container, the copy of the label on the package, whether Feinberg was an informer, any evidence the government relied on to prove O’Neill was a person who dealt in narcotie drugs, any prior sales which the government relied on, and who'was present when such sales were made. Where an indictment sets forth the facts constituting the essential elements" }, { "docid": "13024239", "title": "", "text": "the ground that the payment of tax by a retail liquor dealer has not been required by law since June 30, 1919— the effective date of the War Prohibition Act — was overruled. There was sufficient evidence that liquor was being sold at retail at a store in Savannah. Sales on at least three occasions were shown, and several thousand empty bottles and cartons with whisky labels on them were found there. The principal contention on the facts is that the place of business was being conducted, not by the defendants, but by several of their brothers. The defendant Harry Goldberg claims a case of mistaken identity. One witness seemed to be in some doubt as to the identity of this defendant, but other witnesses testified positively that he was present while sales were being made arid asserted the rights of an owner of the place, by resisting a search by government officials, and demanding to be shown their authority to make it. Besides, the defendants offered in evidence, without limitation as to its purpose or effect, testimony taken at a preliminary hearing, from which it appeared that the doubtful witness was more positive just after the arrest of the defendants than he was at the time of the trial, which occurred more than a year later. The defendant Israel Goldberg undertook to prove an alibi, but he was positively identified. The order of the court overruling the demurrer to the joint indictment is assigned as error. It is contended that section 3244, which required a special tax of retail liquor dealers, was repealed by the War Prohibition Act, and that consequently no tax was required on, the date when it is charged by the indictment that defendants engaged in the business of retail liquor dealers. Section 3244 defines a retail liquor dealer as a person who sells or offers for sale distilled spirits in less quantities than five wine gallons at the same time. Prior to the passage of the War Prohibition Act, no distinction was made between dealers engaged in the sale of distilled spirits for beverage purposes" }, { "docid": "23321636", "title": "", "text": "32 Sup. Ct. 812, 56 L. Ed. 1136. It was open to the jury to find that the conspiracy between Ben Rudner and some or all of the other Canton defendants was not only the initial, but the substantial and continuing, conspiracy which had the objects already stated. The jury was instructed, and we think correctly, that one joining a conspiracy after its formation, by contributing to its carrying out with knowledge thereof, would be liable, and that it was not necessary that any party to the conspiracy should know all who were in it (Thomas v. United States [C. C. A. 8] 156 Fed. 897, 912, 84 C. C. A. 477, 17 L. R. A. [N. S.] 720; United States v. Standard Oil Co. [C. C. A. 8] 152 Fed. 290, 294, 295; and see United States v. L. S. & M. S. Ry. Co. [D. C.] 203 Fed. 295, 307) ; that it is enough that the Pittsburgh defendants knew that the Canton parties were engaged in that general conspiracy; and that it was not important whether one firm of Pittsburgh dealers know that the other Pittsburgh dealers were being similarly dealt with. The dropping out of Darling & Biener before the Naumans came in would thus not end such original conspiracy. As applied to this case, we can see no opportunity for prejudice to either of the Pittsburgh parties through the application of this rule. Not only was there no attempt to hold them liable for the statements of other members of the conspiracy made in their absence, but the jury was expressly instructed that the Naumans, for example, would not be liable for any acts of the other conspirators previous to the sales made by the Naumans themselves. The rights of the defendants were carefully guarded throughout the charge. The jury was told, for example, that the testimony of Kitzig, who turned state’s evidence, should be looked upon with scrutiny and suspicion, both by reason of his criminal conduct and by his hope of gain by assisting the government, and the jury was recommended not to" }, { "docid": "15468194", "title": "", "text": "fully established.” We think the charge not. subject to this criticism. On the contrary, the jury was instructed that, if the proof of alibis was sufficient to create a reasonable doubt of «the defendants’ guilt, they should be acquitted. It was said that, even if the government’s witnesses, including Hoblitzel, were mistaken as to the presence of the defendants at the various times and places testified to, the jury might yet find them guilty on other evidence in the case. In this there was no error. The important question of their presence related, not to the precise date, but tp the occasion, unless (as we cannot say) their presence on the precise date testified to was indispensable to guilt. Young v. United States, 249 Fed. 935, - C. C. A. - (decided April 2, 1918). The instruction that Hoblitzel’s alleged mistake as to the presence of plaintiffs in error “would be merely to discredit him as a witness” was coupled with the express limitation — “if other evidence in the case convinces you beyond a reasonable doubt that Taylor was a member of the band whose fraudulent common purpose worked to defraud, Hoblitzel.” The act of one of several persons associated in the transaction of a common enterprise, and done in furtherance of the common object, is generally admissible as evidence against the others. See Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, 249, 38 Sup. Ct. 65, L. R. A. 1918C, 497, Ann. Cas. 1918B, 461. We think this principle applicable generally to existing schemes to defraud under section 215 of the Criminal Code. We find no prejudicial error in refusing request No. 29. So far as it correctly stated the applicable rule., we think it sufficiently covered by tlie charge. 5. Reference to “uncontradicted testimony.” Neither plaintiff in error testified on the trial. In discussing the testimony, in the course of the charge, the court, several times referred to certain testimony on the part of the government and certain identifications of Shea and Taylor as “uncontradicted,” “not directly contradicted,” or “without any contradiction.” These statements" }, { "docid": "5688463", "title": "", "text": "to * * * give away any of the aforesaid drugs without having registered and paid the special tax provided for in this section.” There was evidence in the ease from which a jury would be warranted in finding that plaintiff in error on one occasion gave away the narcotics referred to. The case of Greenberg v. United States, 285 Fed. 865, was a case where it was contended, as here, that a single sale did not constitute the vendor a dealer. This court held that every person under the act was prohibited from selling and from making even a single sale without having registered and paid the special tax. This authority, we think, settles the proposition. No person has the right to make a single sale unless he is registered and has paid the special tax as provided by the act. In Braden v. United States (C. C. A.) 270 Fed. 441, it was claimed that the evidence was insufficient to show that the defendant was a person required to register under section 1 of the act. The court, re- ' ferring to this section, said, “The law does not say ‘carry on the business of’ ” etc., and held that defendant was a person required to register under said section. Most of the cases cited by plaintiff in error on this question, such as Swartz v. United States (C. C. A.) 280 Fed. 115, and United States v. Wilson (D. C.) 225 Fed. 82, deal with section 8 of the Act of December 17, 1914, which relates to the possession of the drugs mentioned in the act, and are not in point here. Second. Another assignment of error raises question as to certain portions of the charge of the court, and also statements made by the court in the presence and hearing of the jury, the complaint being that the same were argumentative. It is the well-established rule in the United States courts that the judge may comment on the evidence and may express his opinion on the facts, provided he clearly leaves to the jury the decision" } ]

[ { "docid": "22782191", "title": "", "text": "our judgment,-was the ‘final settlement ’ of the contract within the meaning of the act. We understand-that the administrative construction of the act has been, to the same effect. The- regulation of the Treasury Department, as it -appears from its circular, issued for the information of persons interested in claims for.material,and labor supplied in the prosecution of work bn buildings under the control of that Department /Dept. Circ.,'No.'45, Sept. 12, 1912), is as follows: “The department treats as the date of final settlement men-, tioned in'said acts” (referring to -the Acts of 1894 and 1905, supra), “the date on which the department approves the basis of settlement under such contract recommended by the Supervising Architect, and orders payment -accordingly.” We conclude that the action was . not brought prematurely. 2.. With respect to the amendment of -the complaint, it is apparent that-as there was an existing right of action under the statute at th.e time the suit was brought, the case was not within the decision, in Texas Cement Co. v. McCord, supra. No new or different cause of action was alleged in the amended complaint. . The court merely permitted the defective statement of the existing right to .be corrected by the addition of appropriate allegations, and in this there was no error. Rev. Stat., § 954; Missouri, Kans. & Tex. Ry. v. Wulf, 226 U. S. 570, 576. 3. It is contended that the' right given by the statute to the described creditors is of an equitable nature, and that the court erred in permitting recovery at law. The objection in the present case is merely technical, as the parties Stipulated to waive trial by jury and the case was heard and decided by the district judge upon facts'-about which there is no dispute. . The question has not been raised heretofore in this court, but it has been assumed in many cases that the action to be brought under the statute upon the contractor’s bond, whether the action were .instituted by the United States (United States v. Congress Construction Co., 222 U. Sr 199) or by creditors" } ]

[ { "docid": "22181456", "title": "", "text": "Pacific Ry. v. Cox, 145 U. S. 593, 603-604; Atlantic and Pacific R. R. v. Laird, 164 U. S. 393; Hutchinson v. Otis, 190 U. S. 552, 555; Missouri, Kansas & Texas Ry. v. Wulf, 226 U. S. 570, 576; Crotty v. Chicago Great Western Ry., 95 C. C. A. 91; S. C., 169 Fed. Rep. 593. But if it introduced a new or different cause of action, it was the equivalent of a new suit, as to which the running of the limitation was not theretofore arrested. Sicard v. Davis, 6 Pet. 124, 140; Union Pacific Ry. v. Wyler, 158 U. S. 285; United States v. Dalcour, 203 U. S. 408, 423. The original complaint set forth that the defendant was operating a line of railroad in Virginia, North Carolina and elsewhere, that the plaintiff was in its employ, that when he was injured he was in the line of duty and was proceeding to get aboard one of the defendant’s trains, and that the injury was sustained at Cochran, Virginia, through the defendant’s negligence in permitting a part of its right of way at that place to get and remain in a dangerous condition. Of course, the right of action could not arise under the laws of North Carolina when the causal negligence and'the injury occurred in'Virginia; and the absence of any mention of the laws of the latter State was at least consistent with their inapplicability. Besides, the allegation that the defendant was operating a railroad in States other than Virginia was superfluous if the right of action arose under the laws of that State, and was pertinent only if it arose in interstate commerce, and therefore under thé act of Congress. In these circumstances, while the question is not free from difficulty, we cannot say that the court erred in treating the original complaint as pointing, although only imperfectly, to a cause of action under the law of Congress. And this being so, it- must be taken that the amendment .merely expanded or amplified what was alleged in support -of that cause of action and related" }, { "docid": "1555085", "title": "", "text": "ORDER VINING, District Judge. The above-styled action, sounding in tort, is before the court on Chrysler Motor Corporation’s (Chrysler’s) motion for partial summary judgment and Harold Staggs’ and Lou Rummage’s motion for leave to amend their complaint. On July 27, 1984, Margaret Staggs (“Mrs. Staggs”) was riding in a 1984 Dodge Ram Charger driven by her sister, Lou Rummage (“Rummage”). The two women were in transit from Columbia, Tennessee, to Tallapoosa, Georgia. While passing through Cedartown, Georgia, the vehicle left the road, struck a curb and a mailbox, and ultimately collided with a telephone pole. As a result of the impact with the telephone pole, Mrs. Staggs was pinned on the floorboard of the vehicle, sustaining severe internal injuries. She died several hours later as a result of those injuries. Rummage also sustained some injuries from the collision. There is uncontroverted evidence that Mrs. Staggs was not wearing her seatbelt at the time the vehicle collided with the telephone pole. It is averred that she was not wearing the seatbelt because she weighed too much to comfortably fit it around her. Following the accident, Staggs and Rummage, individually and as co-administrators of Mrs. Staggs’ estate, filed the instant action in this court. Staggs seeks to recov er under a theory of strict products liability for the injuries to and death of his mother and for the resulting damages incurred by him. Rummage seeks to recover under the same theory of strict liability, claiming entitlement to medical costs, lost wages, and a monetary award for pain and suffering. As co-administrators of Mrs. Staggs’ estate, both Staggs and Rummage seek to recover for Mrs. Staggs’ medical expenses, pain and suffering, and funeral expenses. The plaintiffs claim that Chrysler is strictly liable for its failure to install passive restraints (“air bags”), for manufacturing an uncrashworthy vehicle, and for installing defective seats and seat tracks. Chrysler has moved for partial summary judgment, arguing that the plaintiffs’ cause of action involving passive restraints is preempted by congressional legislation and administrative rulemaking. In support of its motion for partial summary judgment, Chrysler relies primarily on section" }, { "docid": "13399920", "title": "", "text": "there was no affirmative evidence of negligence sufficient to justify its submission to the jury, we must hold that the rejection of this testimony tending to affirmatively establish that the wigwag was and for a long period had been in good working order, was prejudicial as well as erroneous. Appellant claims that the court erroneously denied its motion for a directed verdict on the count charging negligence in the care of the wigwag signal. If this motion had been separately presented, it should have been granted (Wilmington Star M. Co. v. Fulton, 205 U. S. 60, 27 S. Ct. 412, 51 L. Ed. 708), but the motion was for a general verdict in favor of the defendant on all counts and was properly denied if on any count or charge of negligence alleged the jury could find a verdict for the plaintiff under the evidence. The question was not raised by any other requested instruction. In view of a new trial, we deem it necessary to consider the question presented by the contentions of the parties with reference to the claim that the negligence of the appellee’s mother in operating her automobile at the crossing was the sole proximate cause of the accident, and that therefore the negligence of the appellant, if any, was not a proximate cause thereof. Appellant’s contention as to the law and facts with relation to this question can best be stated by quoting from its brief as follows: “On any view of the evidence she stopped at a point fifteen feet from defendant’s track. This was beyond the bush and the pole. This was at a point from which she had an unimpaired view of defendant’s track in the direction from which the train was approaching, all the way to Los Banos Station. Further, it cannot be disputed that at' this time the train itself was in plain view. At this point, and with this approaching train so in view, she either did not look before driving in front of the train, or having looked and seen the train she attempted to cross immediately in" }, { "docid": "17834285", "title": "", "text": "subject matter of the controversy.” (Emphasis supplied). The Supreme Court of the United States spoke authoritatively on the subject in Missouri, Kansas and Texas Railway Co. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, an action under the Federal Employers’ Liability Act of 1908 which required the action to be brought in the name of the personal representative of the deceased. Aside from being an action under the Federal Employers’ Liability Act, which we do not regard as having any controlling significance so far as the instant question is concerned, Wulf, supra, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, presented the same problem on an almost identical state of facts. The action was commenced by the mother in her individual capacity on January 23, 1909, to recover for the death of her son, which occurred on November 27, 1908. On January 6, 1911, plaintiff filed her amended petition, alleging that on January 4, 1911, she was appointed temporary administratrix of her son’s estate with full power and authority to prosecute the suit as party plaintiff. The amendment was allowed, she recovered, and on appeal it was contended that the amended petition filed after the statutory period of limitations of two years, and which for the first time set up a right to sue as administratrix, alleged an entirely new and distinct cause of action, and that such amendment could not relate back to commencement of the action. In ruling adversely to this contention, the court stated, 226 U.S. at p. 575, 33 S.Ct. at p. 137: “It seems to us, however, that, aside from the capacity in which the plaintiff assumed to bring her action, there is no substantial difference between the original and amended petitions. In the former, as in the latter, it was sufficiently averred that the deceased came to his death through injuries suffered while he was employed by the defendant railroad company in interstate commerce; that his death resulted from the negligence of the company and by reasons of defects in one of its locomotive engines due to its negligence; and" }, { "docid": "22293736", "title": "", "text": "WILLIAM E. MILLER, Circuit Judge. This is an appeal from the dismissal of appellants’ civil rights action brought’ pursuant to 42 U.S.C. § 1983. The complaint and amended complaint set forth three counts. In addition to the first count, which purports to state a cause of action under § 1983, the complaint in counts 2 and 3 states claims for false imprisonment and negligence. We do not consider the sufficiency of the state claims. The complaint, as amended, alleged that Fitzke had been arrested “without just cause or provocation” by the defendant Shappell after he blacked out and struck a telephone pole as a result of “a bleeding brain lesion.” It is alleged that the arresting officer, Shappell, who apparently arrived at the scene soon after the accident, “conveyed Plaintiff to Eaton County Jail and incarcerated him there,” having made no “inquiry into” nor expressed “concern for the physical condition” of the plaintiff, now appellant, Fitzke. The complaint affirmatively asserts that “[P]laintiff complained of leg pain and limped badly and communicated the need for medical attention, and said medical attention was denied him.” It is further alleged that “[u]pon arriving at the Eaton County Jail or immediately thereafter, Plaintiff complained of said pain and numbness, and instead of obtaining vitally needed medical attention, Defendant(s) merely told Plaintiff to rub the areas of pain and numbness.” The complaint alleges that appellant was at the time “suffering from a blood clot in the brain” and that he “was held in the said jail, from 1:30 AM on February 24, 1971, until 6:30 PM on the same day, a period of 17 hours, without necessary medical treatment, during which period he was suffering from serious brain injury, and during which period he was denied requested medical treatment.” Further, the complaint alleges that as a result of “the failure to provide the requested medical treatment when . . . [Fitzke] was unlawfully incarcerated,” he found it necessary to undergo a “craniotomy in which his skull was opened and the damaged areas of the brain removed.” It is the appellants’ contention that the extent of" }, { "docid": "6888306", "title": "", "text": "Corp. v. Crane Barge R 14, 632 F.2d 1123 (4th Cir.1980). Defendant PEPCO has not offered this Court any evidence of duty that Salkeld and Willard owed Mr. Green and Plaintiffs have not included the third party Defendants in their complaint. CONCLUSION For the foregoing reasons the Court will deny Defendant PEPCO’s Motion for Summary Judgment on the Issue of Contributory Negligence. The trier of fact could reasonable decide that Mr. Green had a heart attack while he was driving the truck. If that is the case, then there can be no contributory negligence on the part of the deceased. The Court will grant Defendant Reilly’s Motion for Summary Judgment on the issue of the Statute of Repose. The utility pole is an “improvement to real property” under Maryland case law and the pole has been on the land for 28 years. Additionally, the Court will grant Defendant Asplundh’s Motion for Summary Judgment as to counts I, II, III and IV. Plaintiffs have failed to make out a case of negligence and gross negligence against Asplundh because they have not shown that Asplundh’s actions were the proximate cause of Green’s death. Defendant PEPCO’s Motion for Summary Judgment on the Absence of Duty or Breach of any Duty will be denied by this Court, along with their Motion for Partial Summary Judgment on Damages Resulting from Conscious Pain and Suffering. A trier of fact could reasonably determine that PEPCO owed a duty to Green and breached that duty. Furthermore, Maryland courts recognize damages resulting from conscious pain and suffering. Plaintiffs have submitted sufficient evidence to bring that question before the trier of fact. As for third party Defendant Salkeld and Willard Packaging Company’s Motion for Summary Judgment, the Court will grant the motion. Willard did not owe a duty to PEPCO as a business invitee. Defendant Asplundh’s Motion to Bifurcate and Motion to Exclude the Expert Testimony of Wallace 0. Faison are moot as they have been dismissed as a party pursuant to the Court’s granting of their Motion for Summary Judgment. The Court will also, sua sponte, dismiss: (1) Defendant" }, { "docid": "13376609", "title": "", "text": "the action. The District Court did not abuse its discretion in permitting the amendment. Mexican Central Ry. Co. v. Pinkney, 149 U.S. 194, 201, 13 S.Ct. 859, 37 L.Ed. 699. The amended declaration in no way changed the substance of the controversy. It is true that paragraph 14 thereof set out the provisions of a statute not theretofore pleaded or referred to, namely, chapter 27 Gf the Statutes of Ontario, 1930, whereby the comparative negligence rule is established for that province in personal injury cases. Elowever, the cause of action was the same. It arose out of the same accident which resulted in the same death. Cf. Texas & Pacific Ry. Co. v. Cox, 145 U. S. 593, 603, 12 S.Ct. 905, 36 L.Ed. 829; Atlantic & Pacific R. Co. v. Laird, 164 U. S. 393, 402, 17 S.Ct. 120, 41 L.Ed. 485. The same evidence was required to establish the material allegations of both the original and the amended declaration. As in Missouri, Kansas & Texas Ry. Co. v. Wulf, 226 U.S. 570, 576, 33 S.Ct. 135, 57 L.Ed. 355, the change was in form rather than in substance. Paragraph 14 might properly have been omitted from the amended declaration. Being defensive in its nature, the paragraph properly belonged in a reply, and constituted surplus-age as pleaded. Since the amendment merely amplified what the declaration alleged in support of the action already asserted, it was a continuation of the original action; it related back to the filing thereof, and was not barred by the limitation of the statute. Brown v. Erie R. Co., 176 F. 544 (C.C.A.6); Seaboard Air Line Ry. v. Renn, 241 U.S. 290, 36 S.Ct. 567, 60 L.Ed. 1006; New York Central & Hudson River R. Co. v. Kinney, 260 U.S. 340, 43 S.Ct. 122, 67 L.Ed. 294. The judgment is affirmed." }, { "docid": "6888298", "title": "", "text": "owner of a right of way easement on real property, owes a trespasser the duty to “refrain from willfully or wantonly injuring or entrapping the person ‘once his presence is known.’ ” Mech v. Hearst Corp., 64 Md.App. 422, 426, 496 A.2d 1099 (1985). Without deciding the merits of whether Green was a trespasser or was owed a higher duty, this Court believes that evidence has been presented by Plaintiffs for a trier of fact to reasonably decide that PEPCO’s actions were willful and wanton. PEPCO’s inspector was told that the utility pole was swaying after the guy wire had snapped. Furthermore, they were told that the three 500 pound transformers atop the pole had separated from the pole. PEP-CO was also told that trucks passed by the pole on a regular basis and a picnic area was in plain view of the utility pole area. There is certainly enough evidence present in the case to show that PEPCO should have known that the utility pole was dangerous and that there was vehicular and pedestrian traffic in the area. A trier of fact could reasonably determine that PEP-CO could have anticipated a 500 pound transformer dropping in an area where people may be. PEPCO’s Motion for Summary Judgment will be denied by this Court because a trier of fact could reasonably determine that PEPCO owed Plaintiffs a duty, and they breached that duty. VI Defendant PEPCO’s Motion for Partial Summary Judgment on Damages Resulting from Conscious Pain and Suffering Plaintiffs seek to recover conscious pain and suffering damages under their survival action claims. In Maryland, plaintiffs can recover pain and suffering damages endured by the deceased, between the time of injury and the time of death. Beynon v. Montgomery Cablevision Limited Partnership, 351 Md. 460, 475, 718 A.2d 1161 (1998). In order to recover for conscious pain and suffering, the defendant’s negligence must be the direct and proximate cause of the accident, the victim must have lived after the accident, and the victim must have suffered conscious pain. Tri-State Poultry Cooperative v. Carey, 190 Md. 116, 125, 57 A.2d 812" }, { "docid": "18040473", "title": "", "text": "that such a light conveys to the motorist a meaning much different from that conveyed by a yellow light similarly placed. But, even were we to adopt this rather tenuous construction, we find nothing in the language of the statute which indicates that the legislature intended to extend the contractor’s common law duty so far as to require him to warn against a dangerous condition created by another on property over which he had no control. The plaintiffs have argued that “it suffices for us to show that there is at least one good charge of negligence, a charge of proximate cause, and a charge of damages.” To this must necessarily be added that the charge of proximate cause must show a cause and result relation between that “one good charge of negligence” and the damages sustained by plaintiffs. Baltimore & O. S. W. R. Co. v. Burtch, 192 Ind. 199, 134 N.E. 858; Indianapolis Abattoir Co. v. Neidlinger, 174 Ind. 400, 92 N.E. 169. In this case, then, where the defendant’s only duty was to warn the plaintiffs of any dangerous conditions which had been created by it, and where the plaintiffs’ injuries resulted from the collision of the bus in which they were riding, with the trolley pole of the Gary Railways Company some distance away, on premises for which defendant was nowise responsible, it was incumbent upon the plaintiffs to show that defendant’s violation of the Indiana statute bore a causal relationship to the injuries sustained by them. The allegations of the complaint not only fail to do this but expressly negative the existence of any such relationship. Paragraph 20 of the complaint alleges: “That by reason of said pole being unpainted as aforesaid, unlighted, as aforesaid, and without any red lights or any -warning devices on it whatsoever, as aforesaid, or without any warning signs or red lights warning him of danger ahead, as aforesaid, the driver of said bus was unable to see said pole or know of its presence or of the danger ahead in time to avoid hitting said pole and the dangers" }, { "docid": "22179153", "title": "", "text": "the trial court, made a fatal choice of an inconsistent remedy, would be to subordinate substance to form of procedure, with the result of defeating a claim which the respondents stipulated had been sufficiently established to justify a verdict against them. This we cannot consent to do. The questions of procedure being thus cleared away, there is little further difficulty with the case. As we have seen, the “amended petition” was not filed in a new case but was simply a-step forward in progress toward settlement of the original controversy; the allegations of fact are precisely the same in substance, and almost the same in form, as they were in the original bill and therefore looking to substance and realities, they cannot be regarded as stating a new cause of action. The case falls clearly within the scope of the principle of the decisions of this court in Texas & Pacific Ry. Co. v. Cox, 145 U. S. 593-604; Atlantic & Pacific R. R. Co. v. Laird, 164 U. S. 393, 401; Missouri, Kansas & Texas Ry. Co. v. Wulf, 226 U. S. 570; Seaboard Air Line Ry. v. Renn, 241 U. S. 290; Washington Ry. & Elec. Co. v. Scala, 244 U. S. 630, 640. The decision in Union Pacific Ry. Co. v. Wyler, 158 U. S. 285, is so clearly distinguished in the Wulf Case, supra, from the principle of these decisions that additional comment would be superfluous. It results that the judgments of the Circuit Court of Appeals and of the District Court must be reversed and the cause remanded to the latter jfor further proceedings in conformity with this opinion. Reversed." }, { "docid": "22045878", "title": "", "text": "took the plow off and was putting the overhead current on, she heard him groan.” And she saw him “twist his hands when he got the shock.” The declaration does not charge a defect in the leads. It charges the negligence to have been in the failure “to keep, or cause to be kept, cut off ” the electric current while the deceased was in the pit, “whereby and by reason of-said negligence the said intestate was- so severely shocked and injured by said electric current that he almost immediately died.” In other words,' the cause, of death was the negligent act of permitting the trolley pole to come in contact with the trolley wire. ■ But, granting plaintiff is not limited by her declaration, nevertheless she has not satisfied the requirements of law in her proof. A plaintiff in the first instance must show negli gence on the part of the defendant. Having done this; he need not go farther in those jurisdictions where the burden -of proof is on the defendant to show contributory negligence. In other words, if there is no evidence which speaks one way or the other with reference to contributory negligence of the person killed, then it is presumed that there was no such negligence. Thompson on the Law of Negligence, sec, 401; Baltimore & Potomac R. R. Company v. Landrigan, 191 U. S. 461; Texas & Pacific Railway Company v. Gentry, 163 U. S. 353. But the negligence of a defendant cannot be inferred from ,a presumption of care on the part of the person killed. A presumption in the performance of duty attends the defendant as well as the person killed. It must be overcome by direct evidence. One presumption cannot be built upon another. Douglas v. Mitchell, 35 Pa. St. 440; Philadelphia &c. Railway Company v. Henrice, 92 Pa. St. 431; Yarnell v. Kansas City &c. Railroad Company, 113 Missouri, 570. Judgment affirmed." }, { "docid": "22181455", "title": "", "text": "did not state a cause of action under the act of Congress, that with the amendment the complaint would state a new cause of action under that act, and that, as more than two years had elapsed since the right of .action accrued, the amendment could not be made the medium of introducing this new cause of action consistently with the provision in § 6 that “no action shall be maintained under this act unless commenced within two years from 'the day.the cause of action accrued.” Whether in what was done this restriction was in effect disregarded is a Federal question and subject to reexamination here, however much the allowance of the amendment otherwise might have rested in discretion or been a matter of local procedure. Atlantic Coast Line v. Burnette, 239 U. S. 199. If the amendment merely expanded or amplified what was alleged in support of the cause of action already asserted, it related back to the commencement of the action and was not affected by the intervening lapse' of time. Texas and Pacific Ry. v. Cox, 145 U. S. 593, 603-604; Atlantic and Pacific R. R. v. Laird, 164 U. S. 393; Hutchinson v. Otis, 190 U. S. 552, 555; Missouri, Kansas & Texas Ry. v. Wulf, 226 U. S. 570, 576; Crotty v. Chicago Great Western Ry., 95 C. C. A. 91; S. C., 169 Fed. Rep. 593. But if it introduced a new or different cause of action, it was the equivalent of a new suit, as to which the running of the limitation was not theretofore arrested. Sicard v. Davis, 6 Pet. 124, 140; Union Pacific Ry. v. Wyler, 158 U. S. 285; United States v. Dalcour, 203 U. S. 408, 423. The original complaint set forth that the defendant was operating a line of railroad in Virginia, North Carolina and elsewhere, that the plaintiff was in its employ, that when he was injured he was in the line of duty and was proceeding to get aboard one of the defendant’s trains, and that the injury was sustained at Cochran, Virginia, through the defendant’s" }, { "docid": "22273238", "title": "", "text": "Employers’ Liability Act. For while it is, true that the executor or administrator is the person authorized to bring the suit, he nevertheless acts only for the benefit of persons specifically designated in the statute. At the time of death there are identified persons for whose benefit the liability exists and who can start the machinery of the law in motion to enforce it, by applying for the appointment of an administrator. This Court has held that a suit brought by such persons in their individual capacity is not a nullity within the provisions of the Act, and that if by amendment the plaintiff is. properly described as executor or administrator of the decedent, even though the amendment is had after the expiration of the statutory period, the suit may be maintained and a recovery had under the statute. See Missouri, K. & T. Ry. v. Wulf, supra. See also Seaboard Air Line v. Renn, 241 U. S. 290, and New York C. & H. R. R. R. Co. v. Kinney, 260 U. S. 340. Thus, at the death of dece dent, there are real parties in interest who may procure the action to be brought; and there are no such practical inconveniences or necessary delays as would lead to the conclusion that the word “ accrued,” as used in the statute, cannot be taken-to refer to the time of death. The language of the statute evidences an intention to set a definite limit to the period within which an action may be brought under it, without reference to the exigencies which arise from the administration of a decedent’s estate. The statute relates not only to causes of action for wrongful death but to causes of action for other injuries. Where the cause of action for personal injury survives to personal representatives of an injured employee who dies after the injury from other causes, the language of the statute seems peremptorily to require the action to be brought within two years from the time of injury, without regard to any intervening period after death when there is no executor or" }, { "docid": "13376608", "title": "", "text": "appointment was valid. As to the question of collusion, the District Court rightly overruled the motion. Appellee was regularly appointed administrator of the estate in Michigan. The motive that actuated these parties in procuring a lawful and valid appointment is immaterial upon the question ,of identity or diversity of citizenship. Me-com, Adm’r, v. Fitzsimmons Drilling Co., Inc., 284 U. S. 183, 189, 52 S.Ct. 84, 76 L. Eld. 233. See, also, City of Detroit v. Blanchfield, 13 F.(2d) 13, 47 A.L.R. 314 (C.C.A.6). As to the third question, the original declaration stated a cause of action. While the Ontario statutes were not sufficiently pleaded, they were not only identified by reference, but their substance was stated in the allegations of negligence. The declaration was imperfectly drawn, but it contained averments sufficient to show that the claim asserted was based on the statutes creating the right of action, and was brought by the proper party plaintiff. This being so, it could be amended, and the amendment would relate back to the date of the institution of the action. The District Court did not abuse its discretion in permitting the amendment. Mexican Central Ry. Co. v. Pinkney, 149 U.S. 194, 201, 13 S.Ct. 859, 37 L.Ed. 699. The amended declaration in no way changed the substance of the controversy. It is true that paragraph 14 thereof set out the provisions of a statute not theretofore pleaded or referred to, namely, chapter 27 Gf the Statutes of Ontario, 1930, whereby the comparative negligence rule is established for that province in personal injury cases. Elowever, the cause of action was the same. It arose out of the same accident which resulted in the same death. Cf. Texas & Pacific Ry. Co. v. Cox, 145 U. S. 593, 603, 12 S.Ct. 905, 36 L.Ed. 829; Atlantic & Pacific R. Co. v. Laird, 164 U. S. 393, 402, 17 S.Ct. 120, 41 L.Ed. 485. The same evidence was required to establish the material allegations of both the original and the amended declaration. As in Missouri, Kansas & Texas Ry. Co. v. Wulf, 226 U.S. 570, 576," }, { "docid": "22867060", "title": "", "text": "the physical injury, we think the jury may consider it. It is not unlikely that the court might have given more ample instruction in this respect, had it been requested so to do. But what was said limited the compensation to the direct consequences of the physical injury. An instruction of this character was sustained in Washington & Georgetown Railroad Co. v. Harmon, 147 U. S. 571, 584. That there might be more or less continuous mental suffering directly resulting from a maiming of the plaintiff’s person in an injury of this character was probable, and where the jury was limited to that which necessarily resulted from the injury we think there can be no valid objection or just ground of complaint. Of a charge of this character, in Kennon v. Gilmer, 131 U. S. 22, 26, Mr. Justice Gray, speaking for this court, said: “But the instruction given only authorized them,'in assessing damages for the injury caused, by the defendants to the plaintiff, to take into consideration ‘his bodily and mental pain and suffering, both taken together’ (‘but not his mental pain alone’), and such as ‘inevitably and necessarily resulted from the original injury.’ The action is for an injury to the person of an intelligent being; and when the injury, whether caused by willfulness or by negligence, produces mental as well as bodily anguish and suffering, independently of any extraneous consideration or cause, it is' impossible to exclude, the mental suffering in estimating the extent of the personal injury for which compensation is to be awarded. The instruction was in accord with the opinions of this court in similar cases.” We find no error in the charge in this respect. As to the alleged error in charging the jury that damages could not be recovered in excess of the sum claimed in the declaration, the court was careful to say to the jury that the sum claimed should not be taken as a criterion to act upon, but that it was only a limit beyond which they could not go. We cannot see how the plaintiff in error" }, { "docid": "12282981", "title": "", "text": "U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520. As to the contention of appellee that appellant failed to prove that the deceased was engaged in interstate commerce, it is sufficient to point out that appellee’s counsel proved on cross-examination of certain of appellant's witnesses that the main line to Denver was included in the tracks over which deceased was walking and with respect to which the jury might find his switching operations were performed. With respect to the contention of the appellant that the record as now presented supplies the missing link in what she contends to be a sufficient chain of causation of her husband’s death, it is necessary to consider the testimony of Dr. Pollard. While appellee’s counsel made some objection to the form of the hypothetical question, the Court permitted it to stand, and counsel, on cross-examination, proceeded on the assumption that the testimony of Dr. Pollard as shown in the margin stands, and we must consider it, with all proper inferences and deductions therefrom, in the light most favorable to appellant. In view of the testimony given on behalf of appellant to the effect that an injury of the type it is contended the decedent suffered probably contributed to the condition resulting in death, the record now before us differs substantially from that dealt with in our previous opinion. The trial judge erred in not submitting the case to the jury, not only on the question of loss of earnings, pain and suffering and injury during life, but also on the question of the cause of death. Inasmuch as the case will be tried again, we should also pass on the issue raised by appellant’s exception to the trial court’s refusal to permit appellant’s counsel to introduce in evidence the hospital records. The applicable statute is found in 28 U.S.C.A. § 1732. In accordance with the expressed terms of this statute, the hospital records were admissible, if they were tendered for the purpose of proving some “act, transaction, occurrence, or event. A proper foundation was made for their admission, for they were produced as the “records”" }, { "docid": "22076031", "title": "", "text": "Mr. Justice Black delivered the opinion of the Court. Petitioner’s husband was killed while in the performance of his duties as an employee of respondent railroad. She filed suit under the Federal Employers Liability Act, 45 U. S. C. § 51 et seq., alleging that her husband’s death was caused by the negligent operation of a railroad car which struck and killed him, and because of respondent’s failure to provide him a reasonably safe place to work. The District Court directed a verdict in favor of the railroad and the Circuit Court of Appeals affirmed. 128 F. 2d 420. We reversed, holding that there was sufficient evidence of the railroad’s negligence to require submission of the case to the jury. Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54, 68, 73. On remand, petitioner amended her complaint in the District Court, over respondent’s objection, by charging that, in addition to the negligence previously alleged, the decedent’s death was caused by the railroad’s violation of the Federal Boiler Inspection Act, 45 U. S. C. § 22 et seq., and Rules and Regulations prescribed by the Interstate Commerce Commission pursuant to the provi sions of that Act. The jury returned a verdict in favor of petitioner, and the District Court refused to set it aside. The Circuit Court of Appeals reversed, 142 F. 2d 718, and certiorari was granted because of the importance of questions involved relating to the administration and enforcement of the Federal Employers Liability Act and the Federal Boiler Inspection Act. Here, as in the Circuit Court of Appeals, respondent has again argued that the evidence of negligence charged in the original complaint was insufficient to justify submission of the case to the jury. Slight variations in the evidence presented at the two trials are said to require a different conclusion than that which we reached on the first review of this case. As to’ this contention of respondent, the Circuit Court of Appeals said on the second appeal that “Since the evidence at the second trial in respect to the movement of the cars was substantially" }, { "docid": "6888300", "title": "", "text": "(1948). Defendant PEPCO, while not conceding that their alleged negligence was the direct and proximate cause of the accident, argues that if Plaintiff lived after the accident, it was for a short time. Plaintiffs’ medical expert, as stated earlier in this Memorandum Opinion, stated in his deposition that the deceased could have reasonably lived for four to six minutes before he died. Furthermore, there is the testimony of Mr. Ward who saw the decedent immediately after the accident and stated in his deposition that Mr. Green’s eyes were open, and they appeared to be looking at him. Furthermore, Ward stated that he saw Green’s hand moving. Sufficient evidence has been presented to this Court that would allow a trier of fact to reasonable find that Green did not die instantaneously and that he suffered for the brief time before he died. Defendant’s argument that four to six minutes is too brief a time to recover pain and suffering is without merit. The Court in Tri-State, held that recovery may be had although the period between accident and death is short. Tri-State at 125, 57 A.2d 812. It will be up to the trier of fact to determine whether Green was conscious at all after the accident and how much did he suffer. Accordingly, the Court will deny Defendant PEPCO’s Motion for Partial Summary Judgment on Damages Resulting from Conscious Pain and Suffering. VII Third Party Defendants Salkeld and Willard Packaging Company’s Motion for Summary Judgment. Defendant PEPCO has filed a third party action against Salkeld and Willard Packaging Company alleging that the third party Defendants owed a duty to PEPCO to inspect and maintain the property and the utility pole and to warn PEPCO of any dangerous condition. Third party Defendants have been brought into this action, in essence, to contribute to PEPCO if they are found liable to Plaintiff Green. Plaintiffs have not brought a direct claim against Salkeld and Willard Packaging Company. The Court will grant third party Defendants Salkeld and Willard Packaging Company’s Motion for Summary Judgment. PEPCO contends that third party Defendants owed them a duty" }, { "docid": "22273237", "title": "", "text": "have occurred which determine the liability of the common carrier, the cause of action has come into existence or has “ accrued.” We do not-think, it is possible to assign to the word “ accrued ” any definite technical meaning which by itself would enable us to say whether the statutory period begins to run at one time or the other; but the uncertainty is removed when the word is interpreted in the light of the general purposes of the statute and of its other provisions, and with due regard to those practical ends which are to be served by any limitation of the time within which an action must be brought. Whatever effect may be given to the assertion often made in judicial opinion that, in the ordinary case where a cause of action arises in favor of the estate of a decedent, there is no person who can enforce it if there is no executor or administrator, that statement cannot be applied strictly to causes of action for death arising under the Federal Employers’ Liability Act. For while it is, true that the executor or administrator is the person authorized to bring the suit, he nevertheless acts only for the benefit of persons specifically designated in the statute. At the time of death there are identified persons for whose benefit the liability exists and who can start the machinery of the law in motion to enforce it, by applying for the appointment of an administrator. This Court has held that a suit brought by such persons in their individual capacity is not a nullity within the provisions of the Act, and that if by amendment the plaintiff is. properly described as executor or administrator of the decedent, even though the amendment is had after the expiration of the statutory period, the suit may be maintained and a recovery had under the statute. See Missouri, K. & T. Ry. v. Wulf, supra. See also Seaboard Air Line v. Renn, 241 U. S. 290, and New York C. & H. R. R. R. Co. v. Kinney, 260 U. S. 340." }, { "docid": "23688460", "title": "", "text": "the headlight was burning he could see objects on the track clearly at a distance of twenty-five or thirty yards, and that he could stop his car in about thirteen feet. Continuing on from the switch, as we have said, the motor car suddenly ran upon something, was stopped, and it was found that Myers had been run over. He was lying in the middle of the track with his head toward the motor and his cap, upright, with the light still burning, was lying beside the track. Myers’ body was badly torn and mangled before the motor car could be stopped. His tongue was found to be moving, but he shortly died from his injuries. It was also shown that Myers was a man of unusual strength and vigor, twenty-nine years of age, and to all appearances in full health and strength shortly before the injury. The trial court submitted the case to the jury to determine whether the defendant had failed to discharge its .duty of using reasonable care to provide a proper and safe place for Myers to work, that is, in failing to provide adequate lights at a dangerous place and permitting the motor car to be operated without the headlight, and also in permitting an exposed live trolley wire to cross the main track at insufficient elevation. An inspection of the record satisfies us that there was testimony enough in the case to carry these questions to the jury under the instructions which weré given. The duty of the master to use reasonable diligence to provide a safe place for the employés to work, to carry on the occupation in which they are employed, is too well settled to require much consideration now. This duty is a continuing one and discharged only when the master provides and maintains a place of that character. Baltimore & Potomac R. R. Co. v. Mackey, 157 U. S. 72, 87; Union Pacific Ry. Co. v. O’Brien, 161 U. S. 451; Choctaw, Oklahoma &c. R. R. Co. v. McDade, 191 U. S. 64; Kreigh v. Westinghouse & Co., 214 U." } ]

[ { "docid": "22475462", "title": "", "text": "review means what it says: that “[t]he question, of course, is not whether [we] would as an original matter have [applied the sanction]; it is whether the District Court abused its discretion in so doing.” Nat’l Hockey League v. Metro. Hockey Chib, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976) (per curiam). We review the factual findings of the district court made in support of its decision for clear error. See Friends of Animals Inc. v. U.S. Surgical Corp., 131 F.3d 332, 334 (2d Cir.1997) (per curiam). Rule 37 provides in relevant part that: If a party or a party’s officer, director, or managing agent ... fails to obey an order to provide or permit discovery, ... the court where the action is pending may issue further just orders. They may include the following: (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. Fed.R.Civ.P. 37(b)(2)(A). We have indicated that “[s]everal factors may be useful in evaluating a district court’s exercise of discretion” to impose sanctions pursuant to this rule, including “(1) the willfulness of the non-compliant party or the reason for noneompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance, and (4) whether the non-compliant party had been warned of the consequences of noncompliance.” Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir.2009) (quoting Nieves v. City of New York, 208 F.R.D. 531, 535 (S.D.N.Y. 2002)) (internal quotation marks and alteration omitted). Because the text of the rule requires only that the district court’s orders be “just,” however, and because the district court has “wide discretion in imposing sanctions under Rule 37,” Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 135 (2d Cir.2007) (internal quotation marks omitted), these factors are not exclusive, and they" } ]

[ { "docid": "23680071", "title": "", "text": "March 28, 2005, this court granted the defendants’ motion in part. Joint App. at 59. Rather than relying on Fed. R.App. P. 38 or § 1912, however, this court awarded costs “in the amount of $363.20 pursuant to Fed. R.App. P. 39,” and, “[p]ursuant to 42 U.S.C. § 1988,” “award[ed] the defendants attorney’s fees on appeal, in an amount to be determined by the district court on remand.” Id. On remand, the defendants who prevailed on their motion for fees and costs filed a pleading and supporting documentation asking the district court to award them fees in the amount of $12,049.00. Roth and Gumeson responded, arguing in pertinent part that the requested fees were unreasonable and, as they had in their response filed with this court, that they were “paupers” who could not afford to pay any amount of fees. Id. at 148. On May 12, 2005, the district court issued an order granting defendants’ motion and directing Roth and Gumeson to pay fees in the requested amount ($12,049.00). II. Appeal No. 05-1129 In Appeal No. 05-1129, Mulhern challenges, on various grounds, the district court’s decision to award sanctions against him and in favor of all the defendants pursuant to Rule 11 and 28 U.S.C. § 1927. We review for abuse of discretion the district court’s decision to impose Rule 11 sanctions against Mulhern. Dodd Ins. Servs., Inc. v. Royal Ins. Co. of Am., 935 F.2d 1152, 1155 (10th Cir.1991). Likewise, we review a district court’s award of § 1927 sanctions for an abuse of discretion. Resolution Trust Corp. v. Dabney, 73 F.3d 262, 265 (10th Cir.1995). Notably, this abuse of discretion standard does “not preclude [our] correction of a district court’s legal errors.... ” Cooter & Gell v. Hartman Corp., 496 U.S. 384, 402, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). In other words, a district court will be deemed to have abused its discretion if its decision to impose sanctions under either Rule 11 or § 1927 “rest[ed] on an erroneous view of the law....” Id. (internal quotation marks omitted). a) Did the “law of the case” prechide" }, { "docid": "22401850", "title": "", "text": "or judicial rejection of the offending contention. Quite clearly then, a party cannot wait until after summary judgment to move for sanctions under Rule ll. By filing a motion for sanctions without previously having served the motion on the opposing party for the designated period and by waiting until summary judgment had been entered, Springfield failed to afford Ridder’s counsel the twenty-one day “safe harbor” period mandated by the 1993 revised rule. We conclude that the magistrate judge’s decision to impose Rule 11 sanctions in this case was based upon an erroneous view of the rule and thus amounted to an abuse of the magistrate judge’s discretion. For this reason, we vacate the imposition of sanctions under Rule 11. III. COUNSEL’S LIABILITY UNDER 28 U.S.C. § 1927 The unavailability of Rule 11 sanctions in the present case does not rule out the possibility that attorney fees were properly assessed against Ridder’s counsel pursuant to 28 U.S.C. § 1927. Unlike Rule 11 sanctions, a motion for excess costs and attorney fees under § 1927 is not predicated upon a “safe harbor” period, nor is the motion untimely if made after the final judgment in a case. See In re Ruben, 825 F.2d 977, 981-82 (6th Cir.1987) (finding motion for § 1927 fees filed four months after district judge’s entry of judgment and two weeks after dismissal of the appeal timely under “reasonableness” test), cert. denied sub nom. Swan v. Ruben, 485 U.S. 934, 108 S.Ct. 1108, 99 L.Ed.2d 269 (1988). Therefore, this avenue for upholding the fee award against Ridder remains viable. Having found sanctions appropriate under Rule 11, the magistrate judge concluded that he: [N]eed not analyze the 28 U.S.C. § 1927 authority as well except to state that it also supports the same award since the conduct of counsel being sanctioned is pleading the policy claim against Springfield in the beginning and then failing to develop any evidence in support of it. The excess costs incurred by Springfield and recoverable under § 1927 against Mr. Brannon are the same amount to be awarded under Rule 11. Decision, Oct. 11," }, { "docid": "14023945", "title": "", "text": "from a final decision of the district court. See 28 U.S.C. § 1291. We can review the underlying factual findings as well. “The impo-r sition of a sanction on an attorney is universally regarded as an order, and, if an appellate tribunal has jurisdiction to review such an order, its examination will encompass the underlying findings.” Williams v. United States (In re Williams), 156 F.3d 86, 90 (1st Cir.1998) (footnote omitted). In certain circumstances, even factual findings by themselves (i.e., unattached to any sanctions) can be appealed because of the “serious practical consequences” they may have on counsel’s reputation. Obert v. Republic W. Ins. Co., 398 F.3d 138, 143 (1st Cir.2005), remand order modified, 2005 U.S.App. LEXIS 4793 (1st Cir. Mar. 24, 2005). “Like the district court, we review [the magistrate judge’s] factual findings under the ‘clearly erroneous’ rubric.” Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 4 (1st Cir.1999). As for the magistrate judge’s decision itself, “[w]e have long recognized that the decision as to whether discovery sanctions are warranted and the choice of what sanctions should be imposed are matters within the sound discretion of the trial court. As such, review of ... discovery sanctions is only for abuse of discretion.” United States v. Soto-Beniquez, 356 F.3d 1, 30 (1st Cir.2003), cert. denied, 541 U.S. 1074, 124 S.Ct. 2432, 158 L.Ed.2d 985 (2004) (internal quotation marks and citations omitted). “An abuse of discretion occurs when a material factor deserving significant weight is ignored, when an improper factor is relied upon, or when all proper and no improper factors are assessed, but the court makes a serious mistake in weighing them.” Id. (internal quotation marks omitted). In the Rule 11 context, the Supreme Court has explained that a court “would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); see also Obert, 398 F.3d at 143. We apply that logic to our review of the sanction" }, { "docid": "22944026", "title": "", "text": "the verdict could not stand as a matter of law. The District Court denied the motion for a new trial, rejecting Smith’s argument that his HIV-positive status automatically constituted a “serious medical need” for Eighth Amendment purposes. The District Court found that there was sufficient evidence to support the jury’s verdict based on Dr. Trabout’s testimony that “although plaintiff was HIV-positive, he suffered no adverse effects from missing his prescriptions for the short periods of time in question.” The District Court further explained that the jury could have concluded, consistent with the evidence presented at trial, that Smith had failed to demonstrate that his health had been placed in substantial jeopardy due to the brief interruptions in his HIV medication. Smith now appeals, arguing that the District Court applied the wrong Eighth Amendment standard in denying his motion for a new trial. Smith contends that the District Court erroneously considered evidence of actual harm in assessing the jury’s finding of no serious medical need when he was only required to establish a potential for serious future injury in order to state an Eighth Amendment denial of medical care claim. Smith also argues that evidence pointing to an absence of adverse medical effects is only potentially relevant in analyzing questions of deliberate indifference or causation — not. as part of the initial serious medical need inquiry. DISCUSSION A. Standard of Review We review the district court’s decision to deny a motion for a new trial pursuant to Fed.R.Civ.P. 59 for abuse of discretion. See New England Ins. Co. v. Healthcare Underwriters Mut. Ins. Co., 295 F.3d 232, 248 (2d Cir.2002). Generally, a motion for a new trial “should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.” Atkins v. New York City, 143 F.3d 100, 102 (2d Cir.1998) (quoting Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir.1997)). In this case, we need only determine whether the District Court abused its discretion by applying an incorrect legal standard in evaluating the" }, { "docid": "20390232", "title": "", "text": "case. Based on the record before it, as well as the Magistrate’s intimate familiarity with the facts of this case, the Court finds no error in the decision not to award PHI monetary sanctions. CONCLUSION Because neither Sikorsky nor PHI have shown Judge Roby’s ruling to be “clearly erroneous or contrary to law,” IT IS ORDERED that Sikorsky’s Motion for Appeal/Review of the Magistrate Judge’s Decision on PHI’s Request for Sanctions (Rec.Doc.708) is hereby DENIED, and PHI’s Objections to the Magistrate Judge’s Decision (Rec.Doc.709) are hereby OVERRULED. . Cases from sister courts within this circuit recognize that bad-faith spoliation of evidence is behavior sanctionable under a federal court’s inherent authority. See, e.g., Ashton v. Knight Transp., Inc., 772 F.Supp.2d 772, 779 (N.D.Tex. 2011) (\"A federal court has the inherent power to sanction a party who has abused the judicial process. The spoliation of evidence is one such abuse.\") (internal citations omitted); Tieken v. Clearing Niagara, Inc., 1997 WL 88180 (N.D.Miss. Jan. 7, 1997) (noting that spoliation sanctions may be imposed pursuant to a district court's inherent authority). . In the immediately following sentence, the Magistrate's Order goes on to state: The Court’s own authority encompasses its \"inherent power to impose sanctions for abuse of the judicial system, including the failure to preserve or produce documents.” Barnhill v. United States, 11 F.3d 1360, 1367 (7th Cir. 1993) (stating that this power stems from a court’s authority to manage its own affairs). Here, PHI does not allege that Sikorsky violated any discovery order or other directive by the Court. Thus, their motions are properly stated pursuant to this Court's inherent powers, and not Rule 37. In order for this Court to impose sanctions under its inherent power, however, it must find bad faith — which is not required under Rule 37. Sample v. Miles, 239 Fed.Appx. 14, 21 n. 20 (5th Cir.2007). Rec. Doc. 706, pp. 11-12. . See Rec. Doc. 709, p. 1 (“PHI does not object to Judge Roby's decision to award an adverse inference and attorneys’ fees and costs as a sanction for Sikorsky’s spoliation----”). . It is true" }, { "docid": "12061910", "title": "", "text": "metal fabrications area. Thomas disputed the testimony regarding the amount of dust and fumes present in the metal fabrications area, and informed the magistrate that other prisoners could support his claim if allowed to testify. The magistrate responded that the court would give no weight to the testimony of prisoners on that topic. Thomas also attempted to raise arguments relating to his other claims. He pointed out that his legal materials were confiscated after the jury verdict was rendered in Newsome and that the judge had not resolved the matter. The magistrate rejected these arguments and stated at the hearing that he was inclined to dismiss the complaint. The magistrate further stated that the defendants would probably prevail on both a motion for summary judgment and a motion for sanctions under Rule 11. Although the defendants did not file a separate motion to dismiss, a motion for summary judgment, or a motion for sanctions under Rule 11, the magistrate entered a report on April 21, 1987, recommending to the court that Thomas’ complaint should be dismissed as a sanction for violation of Rule 11. Thomas filed a timely objection to the magistrate’s report and recommendation, raising several of the arguments he had made at the evidentary hearing. On May 26, 1987, the court adopted the report and recommendation without revision. Thomas appeals the district court’s sanction under Rule 11. II. Discussion An attorney or a party may be sanctioned under Rule 11 for filing a pleading that: (1) has no reasonable legal basis; (2) has no reasonable factual basis; or, (3) is filed for an improper purpose. See United States v. Milam, 855 F.2d 739, 742 (11th Cir.1988). The purpose of Rule 11 is to “discourage dilatory or abusive tactics and help to streamline the litigation process by lessening frivolous claims or defenses.” Rule 11, Fed.R.Civ.P., advisory committee note. Regarding the scope of appellate review of a Rule 11 sanction, factual determinations and the decision to impose sanctions are within the discretion of the district court and are subject to review only for abuse of that discretion. Donaldson v. Clark," }, { "docid": "10371477", "title": "", "text": "funds required to dismiss the corporate case had not been paid. A copy of the motion was mailed to Mitchell. On February 6, the bankruptcy court dismissed Mitchell’s case and entered an order for relief in Chameleon’s case. II After February 6, 2008, the two cases had somewhat divergent paths. We address case number 13-1013 first. A Mitchell filed three separate motions in 2011 to reopen her involuntary bankruptcy case. All of the motions were denied. After the bankruptcy court denied her third motion, which sought to reopen her case pursuant to 11 U.S.C. § 350 and also requested relief pursuant to Fed.R.Civ.P. 60, she filed a motion for reconsideration. The bankruptcy court denied that motion as well. Mitchell then filed an appeal with the BAP seeking review of the bankruptcy court’s denial of her third motion to reopen and the denial of her motion for reconsideration. The BAP affirmed the bankruptcy court’s decisions. This appeal followed. B Although this appeal is from a BAP decision, we independently review the bankruptcy court’s orders. See Alderete v. Educ. Credit Mgmt. Corp. (In re Alderete), 412 F.3d 1200, 1204 (10th Cir.2005). The BAP is a subordinate appellate court not entitled to deference, but its rulings are often persuasive. See C.W. Mining Co. v. Aguila, Inc. (In re C.W. Mining Co.), 625 F.3d 1240, 1244 (10th Cir.2010). We review for abuse of discretion the bankruptcy court’s orders denying the motion to reopen, the request for relief under Rule 60, and the motion for reconsideration. See Rafter Seven Ranches L.P. v. C.H. Brown Co. (In re Rafter Seven Ranches L.P.), 546 F.3d 1194, 1200 (10th Cir.2008) (motion to reconsider); LaFleur v. Teen Help, 342 F.3d 1145, 1153 (10th Cir.2003) (motion for 60(b) relief); Woods v. Kenan (In re Woods), 173 F.3d 770, 778 (10th Cir.1999) (motion to reopen). Mitchell is proceeding pro se, so we must liberally construe her briefs, but we cannot assume the role of her attorney and construct arguments for her. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.2005). Much of Mitchell’s opening brief attacks" }, { "docid": "3365190", "title": "", "text": "On review of such claims, appellate courts must afford the jury’s findings and the district court’s decision great deference. We will reverse only if the district court’s decision not to grant a new trial constitutes an abuse of discretion. See, e.g., Atkins v. New York City, 143 F.3d 100, 102 (2d Cir.1998). “A motion for a new trial ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.” Id. (quoting Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir.1997) (omitting internal notations and quotations)). Furthermore, we review all evidence in the light most favorable to the nonmoving party. See, e.g., id. As a preliminary matter, we note that a jury finding of excessive force does not automatically entitle a claimant to compensatory damages as a matter of law. See id. at 103. In certain circumstances, a jury could reasonably determine that compensatory damages are inappropriate even where excessive force was used. See, e.g., Haywood v. Koehler, 78 F.3d 101, 104 (2d Cir.1996) (“[W]e have ruled that a finding of excessive force does not, as a matter of law, entitle the victim to an award of compensatory damages.”). For instance, where a victim’s claims of injury lack credibility, or where the injuries lack monetary value, a jury could reasonably award nominal damages. See, e.g., Briggs v. Marshall, 93 F.3d 355,360 (7th Cir.1996). Second, where both justified and unjustified force were used, the jury could conclude that the injuries resulted from the justified use of force. See, e.g., Gibeau v. Nellis, 18 F.3d 107,110 (2d Cir.1994). After examining the evidence presented to the jury at trial on the issue of compensable injury, we cannot conclude that the jury’s decision to award Amato nominal damages was seriously erroneous or a miscarriage of justice. Amato testified that he suffered numerous injuries as a result of the booking room incident. These alleged injuries ranged from fairly immediate problems, such as a sore wrist, stiff and bruised neck, headache and swollen shoulder, to more long-term" }, { "docid": "5888335", "title": "", "text": "that John R. Rafter never appeared as attorney or counsel in these cases, and the record discloses that Harry M. Farrell appeared, not as counsel for Mr. Rafter, but that Carl W. Stern appeared “by Harry M. Farrell, Esquire, of counsel.” Whether, upon the record before us, service upon Mr. Farrell would have been sufficient we need not here inquire, for no such service was made. It is clear that service upon Mr. Rafter did not comply with Rule XIX. It is also clear that service upon the attorneys for the estate of Carl W. Stern, and service upon Fred Bennett, Esq., as surviving law partner of Carl W. Stern, was insufficient to comply with said rule. Tripp v. Santa Rosa Street Railroad Company, supra. For the reasons above stated, we must hold that there has never been any service of the printed record or appellant’s brief upon appellee or its counsel. In view of all the foregoing, the question remains as to what disposition of the case should be made at this time. We have no doubt of our power, sua sponte, to dismiss this appeal for failure to comply with section 198, supra, and Rules XVI and XIX of the rules of this court; but, under all the circumstances, this we are loath to do, although appellant has had more than one year in which to make service upon appellee of its assignment of errors, and several months in which to serve upon appellee copies of the printed record and its brief. It does not appear that any attempt was made by the Government to ascertain who constituted the board of directors of appellee corporation at the time of its dissolution, so that service might be made upon them. However, the Government should not be deprived of its right to review of the judgment appealed from if such review can be legally had. There are here no equitable considerations entitling appellee to the exercise of any discretion by the court in its behalf that the court may possess. We think the ends of justice will be best served" }, { "docid": "22126180", "title": "", "text": "evidence, the jury could not reasonably conclude that Autuori made affirmative misrepresentations. Nor does the evidence support a .reasonable infer-énce that Autuori made incomplete or ambiguous statements giving rise to a duty to disclose the material information about the Partnership project. To convict, the government had to present evidence that Au-tuori actually participated in the scheme to defraud. “The jury may not be -permitted to conjecture merely, or to conclude upon pure speculation.... ” United States v. Taylor, 464 F.2d 240, 243 (2d Cir.1972) (quoting Curley v. United States, 160 F.2d 229, 232 (D.C.Cir.1947)) (internal quotation marks omitted). We agree with the district court that no rational juror could find on this evidence that Autuori committed fraud in connection with the Morgan meeting, and we therefore affirm the judgment of acquittal as to Counts 2 and 11-13. C. New Trial By way of alternative relief, the district court granted conditionally Autuori’s motion for a new trial pursuant to Fed. R.Crim.P. 29(d). Because we affirm the judgment of acquittal as to Counts 2 and 11-13, the government’s appeal of that ruling is moot as to those counts. It is alive, however, as to the remaining counts. Upon our review of the record, we conclude that the district court properly exercised its discretion to grant a new trial, and we therefore affirm. 1. Standard of Review We review the grant of a new trial for abuse of discretion. See United States v. Scotti, 47 F.3d 1237, 1241 (2d Cir.1995). “[T]he court may grant a new trial to [a] defendant if the interests of justice so require.” Fed.R.Crim.P. 33; see United States v. Landau, 155 F.3d 93, 104 (2d Cir.1998) (noting that a new trial is proper when a district court “is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice” (quoting Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 370 (2d Cir.1988)) (internal quotation marks omitted)). In the exercise of its discretion, the court may weigh the evidence and credibility of witnesses. See United States v. Sanchez, 969 F.2d 1409, 1413" }, { "docid": "12677745", "title": "", "text": "Complaint and the Defendant Newmont sought sanctions when it had no obligation to answer or respond to Plaintiffs request. PI. Br. in No. 09-2117 at xxx. They make very similar arguments in appeal Nos. 10-1477/10-1837, however, and given the lack of development of the argument here, we will consider the propriety of the sanctions order in appeal Nos. 10-1477/10-1837. See Part II.B. infra. 5. Conclusion For all these reasons, we affirm the district court’s dismissal of all claims against Newmont and the other defendants, R.61 (Op,), R.99 (Op. Oct. 6, 2009), as well as the district court’s denial of the plaintiffs’ motion for reconsideration, R.77 (Op. at 2). B. Nos. 10-1477/10-1837: Motion for Relief and the Separate Sanctions Judgment In Nos. 10-1477/10-1837, the plaintiffs challenge the district court’s order denying the plaintiffs’ motion for relief from the sanctions orders, and the district court’s separate sanctions judgment. The plaintiffs’ first argument is that the district court erred in finding a Rule 11 violation based on conduct that was not specifically identified in Newmont’s motion for sanctions. We see merit in this argument. We ordinarily review an order imposing sanctions under Rule 11 for abuse of discretion. B & H Medical, L.L.C. v. ABP Admin., Inc., 526 F.3d 257, 269 (6th Cir.2008). In their motion for relief from judgment before the district court, however, the plaintiffs did not make the argument that the sanctions order was based on conduct that was not identified in Newmont’s motion for sanctions. See R.112 (Motion for Relief). As a result, we review this claim only for plain error. United States v. Graham, 622 F.3d 445, 455 & n. 9 (6th Cir.2010). “To establish plain error, a defendant must show (1) that an error occurred in the district court; (2) that the error was plain, i.e., obvious or clear; (3) that the error affected defendant’s substantial rights; and (4) that this adverse impact seriously affected the fairness, integrity or public reputation of the judicial proceedings.” Id. (quotation marks omitted). Federal Rule of Civil Procedure 11(b) sets certain requirements for representations to the court, including that “[b]y presenting" }, { "docid": "13372641", "title": "", "text": "In its January 4, 2001 Memorandum Opinion, the district court explained that [t]he dismissal of the Complaints in their entirety, the finding of Rule 11 liability for frivolous claims and the finding that the attorney’s fees and costs sought were reasonable, supports this award of sanctions under Rule 11. In view of Rector’s deposition concerning his and the Trust’s ability to pay and the continuing litigation in state court after imposition of the sanction, it is clear that all of the elements of the [In re] Kunstier [, 914 F.2d 505 (4th Cir.1990),] analysis have been met and the amount of the sanction is appropriate. II. A district court’s decision to impose Rule 11 sanctions is reviewed for abuse of discretion. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 400-01, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). Thus, we review the district court’s factual findings for clear error, id. at 401, 110 S.Ct. 2447, and its legal conclusions de novo. Id. at 402, 110 S.Ct. 2447. The only meritorious argument raised in this appeal is whether the 21-day “safe harbor” provision of Rule 11 is a non-waivable jurisdictional rule. Under Fed. R.Civ.P. 11(c)(1)(a), a Rule 11 motion for sanctions “shall be served [on the opposing party] but shall not be filed with or presented to the court unless, within 21 days after service of the motion ..., the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” The Rule further provides that the motion “shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate” the Rule. Fed. R.Civ.P. 11(c)(1)(a). Congress amended Rule 11 in 1993 by adding the 21-day “safe harbor” provision. The primary purpose for this amendment was to provide immunity from sanctions to those litigants who self-regulate by withdrawing potentially offending filings or contentions within the 21-day period. See, e.g., Ridder v. City of Springfield, 109 F.3d 288, 294 (6th Cir.1997). The Advisory Committee Notes to Rule ll’s 1993 Amendments explain that the provisions are intended to provide a type of “safe harbor” against" }, { "docid": "14065360", "title": "", "text": "magistrate judge recommended that Kolner’s motion be denied, as the district court had already imposed a severe sanction by dismissing Massengale’s complaint with prejudice. The district court reversed the magistrate judge’s decision and reinstated Kolner’s motion. The district court found that Massengale’s complaint had been dismissed due to his failure to follow court orders and possible alteration of exhibits. Because Kolner’s motion for Rule 11 sanctions was based on conduct that occurred prior to the dismissal of the complaint, the district court reasoned that the motion warranted review. Following a hearing, the magistrate judge recommended that Kolner’s motion for sanctions be granted. The magistrate judge found that Massengale failed to present evidence demonstrating that he filed his amended complaint in good faith and that the case had factual and legal support. The magistrate judge concluded that Rule ll’s deterrence goal could be met by imposing a sanction that would compensate Kolner for the value of attorney’s fees incurred as a result of Massen-gale’s conduct. Based on Kolner’s testimony at the hearing, the magistrate judge determined that $25,000 represented reasonable attorney’s fees for the time Kolner spent on the case, and that it was the minimum amount that adequately would deter Massengale from future lawsuits. The district court adopted the magistrate judge’s report and recommendation and granted Kolner’s motion for Rule 11 sanctions. This appeal followed. DISCUSSION We review a district court’s award of Rule 11 sanctions for abuse of discretion. Baker v. Alderman, 158 F.3d 516, 521 (11th Cir.1998). Rule 11 sanctions are properly assessed “(1) when a party files a pleading that has no reasonable factual basis; (2) when the party files a pleading that is based on a legal theory that has no reasonable chance of success and that cannot be advanced as a reasonable argument to change existing law; or (3) when the party files a pleading in bad faith for an improper purpose.” Worldwide Primates, Inc. v. McGreal, 87 F.3d 1252, 1254 (11th Cir.1996). “[T]he selection of the type of sanction to be imposed lies within the district court’s sound exercise of discretion.” Donaldson v. Clark," }, { "docid": "6065821", "title": "", "text": "Corp., No. 89 Civ. 8526, 1996 WL 376971, at *8 (S.D.N.Y. July 5, 1996) (finding letter requesting withdrawal of action sufficient notice for Rule 11 purposes), vacated on other grounds, 111 F.3d 123 (2d Cir.1997). The Magistrate Judge correctly found that the April 8 Letter does not comply with the service requirements of Rule 11. Because the Moving Defendants failed to serve their motion prior to filing and instead served the motion on the same day it was filed, the Magistrate Judge’s refusal to impose sanctions was not clearly erroneous or contrary to law. IV. Plaintiffs Rule 11 Motion for Sanctions Plaintiff, in its papers, makes a passing general objection to the Magistrate Judge’s denial of its cross-motion for sanctions. See PL’s Objections at 1-2. Plaintiff, however, fails to provide the Court with any factual or legal support for this objection in its 37-page brief. The Magistrate Judge found that Plaintiffs motion failed to comply with Rule ll’s “safe harbor” provisions. See Report and Recommendation at 17 n. 9. The Magistrate Judge further found that Plaintiffs cross-motion contravened the- very purpose of Rule 11, in that Plaintiff had previously moved for Rule 11 sanctions on the same grounds, which the Court also denied. See id. at 17-18. The Magistrate Judge awarded the Moving Defendants reasonable expenses and attorney’s fees incurred in opposing Plaintiffs cross-motion. The Court finds that the Magistrate Judge’s denial of Plaintiffs cross-motion for sanctions and award of costs to the Moving Defendants was not clearly erroneous or contrary to law. CONCLUSION For the foregoing reasons, the Court finds no error in the 1997 Report and Recommendation. Accordingly, the Moving Defendants may submit an affidavit, in accordance with the Magistrate Judge’s Report and Recommendation, detailing an account of their expenses in opposing Plaintiffs cross-motion for sanctions. The Court hereby lifts the stay of proceedings imposed by the 1996 Order to Show Cause. It is So Ordered. . Chief Judge Griesa signed the Order to Show Cause on March 21, 1996, thereby staying all other proceedings in this action, including the Court’s briefing schedule on co-venturer liability. . Both" }, { "docid": "23120612", "title": "", "text": "hearing, the district court denied Davis’s request to submit supplemental briefing on the issue of sanctions. In view of these procedural defects, we are compelled to vacate the district court’s revocation of Spriggs’s and Davis’s pro hac vice status. B. Imposition of Rule 11 Sanctions This Court reviews a district court’s imposition of sanctions under Fed. R.Civ.P. 11 for abuse of discretion. See Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 57 (2d Cir.2000). “[Although the decision to impose sanctions is uniquely within the province of a district court, we nevertheless need to ensure that any such decision is made with restraint and discretion.” Id. (internal quotation marks omitted). Rule 11 provides that an attorney makes the following representations each time he or she submits a paper to the court : (1) the paper is not being presented for an improper purpose; (2) the legal claims are warranted under existing law or pursuant to a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law; (3) the allegations and factual contentions have evidentiary support or will likely have evidentiary support after a reasonable opportunity for discovery; and (4) denials of factual contentions are warranted. Fed.R.Civ.P. 11(b). “[A]fter notice and a reasonable opportunity to respond,” the court may impose sanctions on the attorneys if, inter alia, it determines that any of the above requirements have been violated. Fed.R.Civ.P. 11(c). This Court has interpreted this procedural requirement to mean that “a sanctioned attorney must receive specific notice of the conduct alleged to be sanctionable and the standard by which that conduct will be assessed, and an opportunity to be heard on that matter.” Nuwesra, 174 F.3d at 92 (internal quotation marks omitted). In determining whether sanctions are warranted, courts may consider, among other things, “whether the person has engaged in similar conduct in other litigation.” Fed.R.Civ.P. 11 advisory committee notes (1993 Amendments). If a party wishes to move for Rule 11 sanctions, the Rule 11 motion must “be made separately from other motions or requests and shall describe the specific conduct alleged" }, { "docid": "20656470", "title": "", "text": "addresses, subpoenas were issued to internet service providers (“ISPs”) Covad, Century Link, and two Verizon companies, based on the dates and times that each bidding session started for each IP address. All ten IP addresses, including those utilized during the sessions when winning bids were placed, were traced to Efacts. Upon learning this information, Yoder & Frey and RTB filed suit against Efacts. Following a jury trial of this -cause, a ver- diet was rendered in Plaintiffs’ favor. This timely appeal followed. II. DISCUSSION A. Spoliation Sanction We review a district court’s decision whether to impose a spoliation sanction for an abuse of discretion. Adkins v. Wolever, 692 F.3d 499, 503 (6th Cir.2012) (hereinafter, Adkins II). “A court abuses its discretion when it commits a clear error of judgment, such as applying the incorrect legal standard, misapplying the correct legal standard, or relying upon clearly erroneous findings of fact.” Jones v. Ill. Cent. R. Co., 617 F.3d 843, 850 (6th Cir.2010) (internal quotation marks omitted). “[A] federal court’s inherent powers include broad discretion to craft proper sanctions for spoliated evidence.” Adkins v. Wolever, 554 F.3d 650, 651 (6th Cir.2009) (en banc). A party seeking a spoliation sanction because evidence was destroyed must establish “(1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.” Beaven v. U.S. Dep’t of Justice, 622 F.3d 540, 553 (6th Cir.2010) (internal quotation marks omitted). A district court “may impose many different kinds of sanctions for spoliated evidence, including dismissing a case, granting summary judgment, or instructing a jury that it may infer a fact based on lost or destroyed evidence.” Automated Solutions Corp. v. Paragon Data Sys., Inc., 756 F.3d 504, 513 (6th Cir.2014) (internal quotation marks omitted). The severity of sanction issued is determined on a case-by-case basis, depending in" }, { "docid": "6616665", "title": "", "text": "U.S. Dist. LEXIS 71421, at *29, *32-34. With respect to the second statement, the Magistrate Judge imposed a $5,000 sanction on each attorney who signed the opposition filing, see id. at *12, 2006 U.S. Dist. LEXIS 71421, at *36, but he declined to impose monetary sanctions for making the third statement because “[although defendants’ counsel overstated the amount of money sent to benefit the [plaintiffs’] Witnesses, the amount of the overstatement was small (approximately $3,000) and did not materially change the nature of the statement,” id. at *11, 2006 U.S. Dist. LEXIS 71421, at *34. The Magistrate Judge also awarded plaintiffs one-third of their attorneys’ fees arising from their partially successful Rule 11 motion. See id. at **12-13, 2006 U.S. Dist. LEXIS 71421, at *37. Counsel for defendants appealed the Magistrate Judge’s September 29, 2006 Order to the District Court. Applying a deferential “clearly erroneous or contrary to law” standard of review under 28 U.S.C. § 636(b)(1)(A), the District Court affirmed the imposition of sanctions in an unpublished order dated August 10, 2007. See Sp.App. 35, 37. This appeal followed. DISCUSSION We review an order imposing Rule 11 sanctions for abuse of discretion. See, e.g., Storey v. Cello Holdings, L.L.C., 347 F.3d 370, 387 (2d Cir.2003). An “abuse of discretion” occurs when a district court “base[s] its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or render[s] a decision that cannot be located within the range of permissible decisions.” Sims v. Blot, 534 F.3d 117, 132 (2d Cir.2008) (citations and internal quotation marks omitted). Here, the District Court’s decision to impose sanctions based on the statements challenged by plaintiffs has no support in law or logic — and therefore constitutes an “abuse of discretion.” A statement of fact can give rise to the imposition of sanctions only when the “particular allegation is utterly lacking in support.” Storey, 347 F.3d at 388 (internal quotation marks omitted). As described in greater detail below, neither of the statements that the Magistrate Judge and the District Judge held sanctionable meets this standard as a matter" }, { "docid": "23091003", "title": "", "text": "Interfunding, Inc. v. Argenti, 155 F.3d 113, 120 (2d Cir.1998); Schlaifer Nance & Co. v. Estate of Andy Warhol, 119 F.3d 91, 98 (2d Cir.1997); Katara v. D.E. Jones Commodities, Inc., 835 F.2d 966, 970 (2d Cir.1987). Under Rule 50 of the Federal Rules of Civil Procedure, judgment as matter of law is appropriate where “there is no legally sufficient evi-dentiary basis for a reasonable jury to find for” a party. Fed.R.Civ.P. 50(a)(1). In ruling on a motion for judgment as a matter of law, the court “must view the evidence in a light most favorable to the non-movant and grant that party every reasonable inference that the jury might have drawn in its favor.” Samuels v. Air Transport Local 501, 992 F.2d 12, 16 (2d Cir.1993). A district court’s decision to grant or deny a motion for a new trial will be reversed only if the trial court’s decision was an abuse of discretion. Atkins v. New York City, 143 F.3d 100, 102 (2d Cir.1998); Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir.1997). “A motion for a new trial ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.” Lightfoot, 110 F.3d at 911 (internal notations and quotations omitted). We now review the district courts’ decisions in light of these well established standards. B. Elements of a RICO Claim To establish a RICO claim, a plaintiff must show: “(1) a violation of the RICO statute, 18 U.S.C. § 1962; (2) an injury to business or property; and (3) that the injury was caused by the violation of Section 1962.” Pinnacle Consultants, Ltd. v. Leucadia Nat’l Corp., 101 F.3d 900, 904 (2d Cir.1996) (citing First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 767 (2d Cir.1994)). Section 1962(c), the section relevant here, makes it unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the con" }, { "docid": "12677746", "title": "", "text": "We see merit in this argument. We ordinarily review an order imposing sanctions under Rule 11 for abuse of discretion. B & H Medical, L.L.C. v. ABP Admin., Inc., 526 F.3d 257, 269 (6th Cir.2008). In their motion for relief from judgment before the district court, however, the plaintiffs did not make the argument that the sanctions order was based on conduct that was not identified in Newmont’s motion for sanctions. See R.112 (Motion for Relief). As a result, we review this claim only for plain error. United States v. Graham, 622 F.3d 445, 455 & n. 9 (6th Cir.2010). “To establish plain error, a defendant must show (1) that an error occurred in the district court; (2) that the error was plain, i.e., obvious or clear; (3) that the error affected defendant’s substantial rights; and (4) that this adverse impact seriously affected the fairness, integrity or public reputation of the judicial proceedings.” Id. (quotation marks omitted). Federal Rule of Civil Procedure 11(b) sets certain requirements for representations to the court, including that “[b]y presenting to the court a pleading, written motion, or other paper,” “an attorney or unrepresented party certifies that” he or she has undertaken “an inquiry reasonable under the circumstances” to ensure that (1) “it is not being presented for any improper purpose”; (2) “the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law”; (3) “the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery”; and (4) “the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.” Fed.R.CivP. ll(b)(l)-(4). A district court may impose sanctions on an attorney who violates these requirements either on motion by an opposing party or sua sponte. Fed. R.Civ.P. 11(c)(2), (c)(3). The identification of the specific conduct that is allegedly sanctionable is critical to a finding of a Rule 11 violation. Where a" }, { "docid": "14065361", "title": "", "text": "that $25,000 represented reasonable attorney’s fees for the time Kolner spent on the case, and that it was the minimum amount that adequately would deter Massengale from future lawsuits. The district court adopted the magistrate judge’s report and recommendation and granted Kolner’s motion for Rule 11 sanctions. This appeal followed. DISCUSSION We review a district court’s award of Rule 11 sanctions for abuse of discretion. Baker v. Alderman, 158 F.3d 516, 521 (11th Cir.1998). Rule 11 sanctions are properly assessed “(1) when a party files a pleading that has no reasonable factual basis; (2) when the party files a pleading that is based on a legal theory that has no reasonable chance of success and that cannot be advanced as a reasonable argument to change existing law; or (3) when the party files a pleading in bad faith for an improper purpose.” Worldwide Primates, Inc. v. McGreal, 87 F.3d 1252, 1254 (11th Cir.1996). “[T]he selection of the type of sanction to be imposed lies within the district court’s sound exercise of discretion.” Donaldson v. Clark, 819 F.2d 1551, 1557 (11th Cir.1987) (en banc). If warranted for effective deterrence, an appropriate sanction may include “an order directing payment to the movant of some or all of the reasonable attorneys’ fees and other expenses” incurred as a result of the Rule 11 violation. Fed. R.Civ.P. 11(c)(2). The goal of Rule 11 sanctions is to “reduce frivolous claims, defenses, or motions, and to deter costly meritless maneuvers.” Donaldson, 819 F.2d at 1556 (internal quotation marks and citation omitted). Massengale argues that the district court erred in awarding attorney’s fees to Kolner pursuant to Rule 11 because Kol-ner represented himself in the case. Mas-sengale contends that under Ray v. U.S. Dep’t of Justice, 87 F.3d 1250 (11th Cir.1996), Kolner is not entitled to fees for his own legal work. Massengale also argues that the district court was without a proper legal basis for imposing sanctions pursuant to Rule 11. We consider first whether Rule 11 allows for an award of attorney’s fees to a pro se litigant. In Ray, we considered whether a district" } ]

[ { "docid": "4060291", "title": "", "text": "York office as the mailer’s address but no envelopes were introduced at trial to substantiate the assertion that they were mailed in New York. Dean testified that he received all four letters “as mailings,” but the Government did not follow this up by introducing into evidence any testimony relative to the general practice of the bank, or of its customs, usages or practices with reference to incoming correspondence, see Stevens v. United States, 306 F.2d 834, 835 (5 Cir. 1962). Appellant has seized upon this failure of direct proof of appellant’s use of the mails; but the absence of direct proof is not fatal to the Government’s case, for “The use of the mails may be established, like most other facts, by cir7 cumstantial evidence.” Stevens v. United States, supra at 836. In United States v. Leathers, 135 F.2d 507 (2 Cir. 1943), our earlier case of United States v. Baker, 50 F.2d 122 (2 Cir. 1931), was distinguished on the ground that in Baker testimony had been received indicating that the letters there involved might have been delivered by hand and, because no direct proof of mailing was offered, this made indirect proof insufficient because “the circumstances proved [did not] exclude all reasonable doubt” that the mails were in fact used. 50 F. 2d at 123. However, here, as in Leathers, there is no reasonable doubt. The testimony of AIC's secretary that she typed the letters in New York, Dean’s receipt of them in Philadelphia, the scheme for applying for loans all over the country, all lead to the credible inference that the letters involved here went through the mails. Viewing the evidence as a whole, submission of the case to the jury was proper and the jury could reasonably have concluded that the letters were mailed from New York. Contrary to appellant’s assertion, Dean’s recollection of a telephone call he had in June or July, 1968, with “Leonard Case” did not violate appellant’s Sixth Amendment right to confront the witnesses against him. The purpose of this testimony was to prove that the “Leonard Case” who spoke over the" } ]

[ { "docid": "2709597", "title": "", "text": "the count letters. United States v. Joyce, 499 F.2d 9, 16 (7th Cir.), cert. denied, 419 U.S. 1031, 95 S.Ct. 512, 42 L.Ed.2d 306 (1974); Blue, supra, at 358. Appellants also claim that certain count letters cannot underlie Section 1341 convictions because those letters merely confirmed prior verbal understandings with two warehouses and an answering service, and paid for storage services. Even had the warehouses or answering service confirmed the verbal understandings, “[t]he jury could have found . . . that the mailing was sufficiently closely related to the scheme so as to bring the conduct within the [mail fraud] statute.” United States v. Owen, 492 F.2d 1100, 1103 (5th Cir.), cert. denied, 419 U.S. 965, 95 S.Ct. 227, 42 L.Ed.2d 180 (1974). A fortiori, appellants’ confirmation letters, implying a well organized legitimate business and hinting at legitimate future dealings with the warehouses and service, were “for the purpose of executing” their fraudulent scheme. Moreover, several letters probably went beyond confirming prior verbal understandings by adding various related companies to those “Stull companies” already receiving the storage and answering services. Joyce, supra, at 15. Likewise, the mailed check to the storage company permitted appellants to retain its storage services and thereby furthered the fraudulent scheme. That the confirmation letters and mailed check could have been hand-delivered, or delivered otherwise than through the mails, is immaterial. See, e. g., United States v. Britton, 500 F.2d 1257, 1258-59 (8th Cir. 1974); United States v. Flax-man, 495 F.2d 344, 348 (7th Cir.), cert. denied, 419 U.S. 1031, 95 S.Ct. 512, 42 L.Ed.2d 306 (1974). We, however, find insufficient evidence supporting the jury’s determinations that the work orders to Brothers Printing (Counts 8, 10, 12) were, in fact, mailed. Brothers’ president-manager admitted that some work orders from Independent Sales were personally delivered to Brothers, and that such personally delivered orders were treated no differently than mailed orders. Compare Joyce, supra, at 18; United States v. Ellicott, 336 F.2d 868, 870-72 (4th Cir. 1964); United States v. Browne, 225 F.2d 751, 756 (7th Cir. 1955); United States v. Baker, 50 F.2d 122, 123 (2d Cir." }, { "docid": "8035198", "title": "", "text": "However, there was no envelope, date stamp, or testimony from the addressee’s secretary who normally opened the mail. We held that the evidence was “entirely too thin” to support a conviction for mail fraud. Id. Furthermore, inferences drawn from circumstantial evidence such as routine practice have been held insufficient in cases where there is evidence of alternative methods of delivery. In Baker, for example, there was testimony that the letters involved might have been delivered by hand, and the court held that in those circumstances the circumstantial proof of mailing was insufficient to exclude a reasonable doubt. 50 F.2d at 123; see also Fassoulis, 445 F.2d at 17 (distinguishing Baker as holding that method of indirect proof is insufficient where there is evidence of alternative method of delivery). However, not all evidence of an alternative method of delivery will foreclose a conviction based on circumstantial evidence of mailing. See United States v. Huber, 603 F.2d 387, 399 (2d Cir.1979). In Huber, there was testimony that checks like those at issue were typically mailed in the ordinary course of business. There was' also testimony that other checks, apparently of a different kind, were picked up by hand. Nevertheless, we held that the evidence of alternative methods did not undermine as a matter of law “the use of customary business practices as proof of mailing.” Id. Thus, evidence of an alternative method of delivery must cast significant doubt on the government’s circumstantial evidence of mailing to render the latter legally insufficient. We believe that the circumstantial evidence relied upon by the government in the instant matter is legally insufficient. The checks were found in the files of the Funds, after being cashed by Eastern. The government argues that one can infer the mailing of cheeks both from records of the Training Program indicating the mailing of other documents such as contracts, change orders, and invoices and from the presence of Eastern’s address on some of those other documents. However, the three checks were handwritten and did not have Eastern’s address on their face. Moreover, the fact that LaBarbara’s father was an officer" }, { "docid": "16411937", "title": "", "text": "obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both. 18 U.S.C. § 1341. . The mailings alleged in each count are as follows: Counts 2 through 12 — Letters from the Illinois Department of Transportation dated August 1, 4, 8, 21, 25, 1975 to various defendants. Counts 13 through 38 — Letters from the Illinois Department.of Transportation containing warrants for the payments on the projects involved in the indictment sent to various defendants. None of the letters were sent to defendant Crown-Trygg. . Defendant places great reliance on the decision in United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974), to support its position that the mailings alleged in Counts 2 through 38 are insufficient to support the section 1341 charges. However, Maze is inapplicable to the case at bar. In Maze, the mailing used to support the section 1341 charge was mailed after the culmination of the conspiracy and therefore could not have been part of the scheme to defraud. Ohrynowicz v. United States, 542 F.2d 715, at 717-719 (7th Cir. 1976). In this case, all the mailings alleged in Counts 2 through 38 occurred before the proceeds of the" }, { "docid": "22598396", "title": "", "text": "testimony of an alternative mode of delivery is simply too scanty, compare United States v. Baker, 50 F.2d 122, 123 (2d Cir. 1931) (testimony by lawyer that “a great many letters delivered by his office were not mailed”), to prevent the use of customary business practices as proof of mailing. See United States v. Toliver, 541 F.2d 958, 966 (2d Cir. 1976); United States v. Fassoulis, 445 F.2d 13, 17 (2d Cir.), cert. denied, 404 U.S. 858, 92 S.Ct. 110, 30 L.Ed.2d 100 (1971). As to Counts 32 and 33, appellant claims that use of the mails by the hospital to deliver monthly payment requisitions to the New York State Department of Health came only after consummation of the fraudulent transactions, and thus could not have been “for the purpose of executing [a] scheme or artifice [to defraud]” within the meaning of 18 U.S.C. § 1341, under United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974). Appellant’s point is that all the invoices on which the requisitions were based had already been paid to one of appellant’s entities by the hospital before the mailing. However, regardless of whether all of the invoices had already been paid, the mailing to obtain reimbursement was a part of this ongoing scheme to defraud. As stated earlier, the jury could find that government funding of hospital expansion was essential to the prosperity of appellant’s fraudulent scheme. In Maze, supra, 414 U.S. 395, 94 S.Ct. 645, the defendant stole a credit card and fraudulently used it to obtain food and lodging at motels. The mails were used by the motels to obtain payment on invoices from banks. Maze’s “scheme reached fruition when he checked out of the motel, and there is no indication that the success of his scheme depended in any way on which of his victims ultimately bore the loss.” Id. at 402, 94 S.Ct. at 649. Further, the mailings there “increased the probability that [the] respondent would be detected and apprehended.” Id. at 403, 94 S.Ct. at 650. Thus, in Maze, the mailings were not only not" }, { "docid": "23295035", "title": "", "text": "U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960); and United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974), where it was held that the object of the scheme had been attained prior or was insufficiently related to any use of the mails. The Government’s proof included disbursement sheets showing the mailing of the refund checks and a stipulation that the custom and practice of the disbursing office was to mail the checks on or about the date when they were drawn. Beyond this was the evidence warranting the jury in finding that the checks had been received at the various addresses; there is no suggestion that such checks are ever transmitted otherwise than by mail. Defendants’ final point is based on United States v. Henderson, 386 F.Supp. 1048 (S.D.N.Y.1974). Judge Weinfeld there dismissed mail fraud counts of an indictment where the scheme as charged in other counts was to defraud the United States by evading and defeating the payment of income taxes in violation of I.R.C. § 7201 and to file false and fraudulent income tax returns in violation of I.R.C. § 7206(1). He held that, in light of the history of the mail fraud statute, it was not intended to include cases where a taxpayer violated provisions of I.R.C. chapter 75 with respect to his own tax liability. We also have expressed misgivings over the Government’s use of the mail fraud statute as a basis for additional counts in an indictment the gravamen of which was the violation of other federal criminal statutes, United States v. Dixon, 536 F.2d 1388, 1398-1401 (2 Cir. 1976). However, this case differs from Henderson in that the fraud here did not relate to defendants’ own tax liabilities. The scheme here was to swindle the Government by causing it to pay out money to persons having no entitlement to it, in a fashion similar to those embraced within the historic purpose of the mail fraud statute, see United States v. Maze, supra, 414 U.S. at 405-06, 94 S.Ct. 643 (Chief Justice Burger, dissenting). Decisions cited in fn. 18" }, { "docid": "1570639", "title": "", "text": "the meaning of the statute when he “does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended . .. . ” Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 362-363, 98 L.Ed. 435 (1954). We find ample evidence in the record upon which to conclude that appellant perpetrated an ongoing insurance fraud scheme which relied in part on his positioning himself between insurance purchasers and insurance companies and his thus being able to intercept and alter mailed communications between them. The mailing of refund checks to the agency was reasonably foreseeable, and their interception and conversion was closely enough related to appellant’s ongoing fraudulent scheme to bring his conduct within the statute. See United States v. Maze, 414 U.S. 395, 399, 94 S.Ct. 645, 648, 38 L.Ed.2d 603 (1974). Other counts upon which appellant was convicted were supported by mailings of falsified insurance applications and the return mailing of insurance policies to policyholders or to appellant’s agency. Appellant argues that such mailings were too remotely related to any fraudulent scheme to be considered in furtherance thereof. But the receipt of policies from the company was necessary to maintain an appearance of business regularity through which appellant could avoid detection and continue to collect commissions on the fraudulently sold policies. See United States v. Sampson, 371 U.S. 75, 80-81, 83 S.Ct. 173, 175-176, 9 L.Ed.2d 136 (1962). Furthermore, because he was often an intermediary in the transmission of applications and policies between policyholders and the insurance company, those transmissions helped him to foster a continuing relationship with those policyholders, many of whom were the targets of repeated fraudulent sales. We have no difficulty finding that, reasonable jurors could conclude that such mailings were an integral part of appellant’s ongoing scheme to defraud. Another count against appellant was based on a letter that he wrote to an insurance company denying his conversion of a refund check. Appellant argues that the letter was not sufficiently in furtherance of" }, { "docid": "2988969", "title": "", "text": "Benes v. United States, 276 F.2d 99, 105 (6th Cir. 1960). Thus, Jola’s officers did not act unlawfully in reporting gross income from the Interborough-Sportservice transactions even though those transactions may have been fraudulent. Therefore, the government is precluded from attempting to prove a conspiracy to violate 26 U.S.C. § 7206(1) by the accurate reporting of income from the Interborough-Sportservice transaction on Jola’s returns. Of course, the government is not precluded from proving that the income reported from the allegedly unlawful transactions was not, in fact, accurate. Although illegal income is reportable, illegal payments or bribes are not deductible as business expenses, 26 U.S.C. § 162(c). Cf. Cooke v. Teleprompter Corp., 334 F.Supp. 467, 472 (S.D.N.Y.1971). Thus the charge of conspiracy to violate Section 7206(1) by falsely claiming bribe payments as business deductions withstands the motion to dismiss. C. Substantive counts of mail fraud Each count 2 through 44 charges the substantive offense of mail fraud, 18 U.S.C. § 1341. The defendant now moves to dismiss counts 8 through 16 for failing to allege a crime and count 17 as barred by the statute of limitations. Each of the mailings charged in counts 8 through 16 was addressed to Jack Zander and contained two Jola Candy checks. The defense argues that, assuming the government’s theory of the case is correct, these mailings represent the proceeds of the fraud and were mailed after the fraud was completed. The defense relies on United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974), to support this argument. In Maze the defendant had fraudulently used a stolen credit card to obtain food and lodging at several motels. The defendant was charged with and convicted of mail fraud arising out of the subsequent mailings of the credit card invoices by the motel to the bank which had issued the card and from the bank to the rightful owner of the credit card. The court reasoned that these mailings were not a part of the scheme to defraud but actions taken after the fact: “the mailings here were directed to the end" }, { "docid": "14607962", "title": "", "text": "and Klutts were paid. Thus, Gann’s reliance on United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974), and Kann v. United States, 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed. 88 (1944), is misplaced. “Kann and Maze hold merely that under the facts of those cases the fraudulent schemes had ended before the mailings occurred. If the scheme continues, mailings made after receipt of the money can clearly support conviction.” U.S. v. Knight, 607 F.2d 1172, 1175 (5th Cir.1979). Gann places great significance on the fact that the county in this case mailed the check to the Bank, an innocent third party, rather than to a participant in the scheme. This fact does not alter our analysis. The county financed the purchase of equipment through the use of lease purchase agreements. The customary practice of the vendor was to assign such agreements to banks. Absent the financing arrangement between the vendor and the Bank, the county would have paid the money directly to the vendor, as in Primrose. We conclude that the county’s payment to the Bank, instead of to the vendor, was an integral part of the entire transaction and in furtherance of the scheme to defraud county citizens. Under the circumstances of this case, it is irrelevant that the warrant was mailed to an innocent third party as a result of a financing arrangement facilitating the transaction. III. SUFFICIENCY OF THE EVIDENCE Gann argues that even though he received money from Klutts as part of this transaction, he is not guilty under the mail fraud statute because there is no evidence of a pre-arranged agreement to take the money, or of his participation in devising the kickback scheme. Gann characterizes his activity as the spontaneous acceptance of an unsolicited offer, and he contends that this conduct is not sufficient to show knowing participation in a fraudulent scheme. This argument strains credulity. The mail fraud statute applies to “whoever ... devise[s] or intend[s] to devise any scheme or artifice to defraud.” 18 U.S.C. § 1341. Gann was also charged in Count 19 with violating" }, { "docid": "13281568", "title": "", "text": "was caused by the defendant in furtherance of the fraudulent scheme.” United States v. Hopkins, 357 F.2d 14, 17 (6th Cir.) cert. den. 385 U.S. 858, 87 S.Ct. 107, 17 L.Ed.2d 84 (1966). “Where one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he ‘causes’ the mails to be used.” Pereira v. United States, supra, 347 U.S. at 8-9, 74 S.Ct. at 363. See also United States v. Street, 529 F.2d 226 (6th Cir. 1976). “That the confirmation letters and mailed check could have been hand-delivered or delivered otherwise than through the mails, is immaterial.” United States v. Stull, 521 F.2d 687, 689 (6th Cir. 1975) cert. den. 423 U.S. 1059, 96 S.Ct. 794, 46 L.Ed.2d 649 (1976). A use of the mails which “is not a step toward receipt of the fruits of the scheme is not covered by section 1341.” United States v. Staszcuk, 502 F.2d 875, 880 (7th Cir. 1974) modified 517 F.2d 53, cert. den. 423 U.S. 837, 96 S.Ct. 65, 46 L.Ed.2d 56 (1975). However, a conviction is warranted if use of the mails was foreseeable. United States v. Hasenstab, 575 F.2d 1035 (2nd Cir. 1978). In United States v. Toliver, 541 F.2d 958 (2nd Cir. 1976), in affirming convictions under the mail fraud statute involving welfare fraud under a state unemployment compensation act, the Second Circuit said that “the use of the mails was here essential to the success of defendants’ plan since their obtaining the fruits of their fraudulent scheme depended on the postal service’s delivery of the unemployment checks to their mailboxes.” 541 F.2d at 966-67. IV Defendants contend that what is fundamentally involved in this case is at best malpractice and that such cannot be the basis of federal prosecution where there is pre-mailing consummation of tortious misconduct in the treatment, technique or diagnosis. To be sure, there was malpractice. In itself such is not subject to federal prosecution for mail fraud. However, the defendants were" }, { "docid": "1570638", "title": "", "text": "therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon ... any such matter or thing, shall be fined not more than $1,000 or imprisoned . not more than five years, or both.” Appellant argues that in the case of three separate counts there was insufficient evidence upon which to conclude that he caused mailings in furtherance of a fraudulent scheme. In two instances the mailings involved were refund checks, payable to clients and mailed to appellant’s agency office, which appellant converted to his own use. He contends that he had no way of knowing that such mailed refunds would issue and thus could not have caused them in furtherance of a scheme to defraud; in effect, that he committed simple theft but not mail fraud. We note first that it is sufficient under the statute if the accused has “take[n] or receive[d]” any matter from the mail in furtherance of a fraudulent scheme. In addition, a person has caused the mail to be used within the meaning of the statute when he “does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended . .. . ” Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 362-363, 98 L.Ed. 435 (1954). We find ample evidence in the record upon which to conclude that appellant perpetrated an ongoing insurance fraud scheme which relied in part on his positioning himself between insurance purchasers and insurance companies and his thus being able to intercept and alter mailed communications between them. The mailing of refund checks to the agency was reasonably foreseeable, and their interception and conversion was closely enough related to appellant’s ongoing fraudulent scheme to bring his conduct within the statute. See United States v. Maze, 414 U.S. 395, 399, 94 S.Ct. 645, 648, 38 L.Ed.2d 603 (1974). Other counts upon which appellant was convicted were supported by mailings of falsified insurance applications and the return mailing of insurance" }, { "docid": "8035197", "title": "", "text": "L.Ed.2d 83 (1996). Nevertheless, we agree that the evidence of mailing on those counts was legally insufficient. There is no direct evidence that the Training Program mailed the three checks to Eastern. However, use of the mails may be established by circumstantial evidence, see, e.g., United States v. Srulowitz, 785 F.2d 382, 387 (2d Cir.1986); United States v. Toliver, 541 F.2d 958, 966 (2d Cir.1976); United States v. Fassoulis, 445 F.2d 13, 17 (2d Cir.1971), but the standard of proof is, as with every element of a crime, beyond a reasonable doubt. Srulowitz, 785 F.2d at 386-87; see also United States v. Baker, 50 F.2d 122, 123 (2d Cir.1931). For example, in Srulowitz, a mail-fraud conviction was overturned for insufficient proof of mailing where the letter in question was found only in the files of someone other than the addressee. That person speculated that he might have gotten it from the addressee, who in turn speculated that, if the letter had been in his files, it would have arrived by mail. 785 F.2d at 387. However, there was no envelope, date stamp, or testimony from the addressee’s secretary who normally opened the mail. We held that the evidence was “entirely too thin” to support a conviction for mail fraud. Id. Furthermore, inferences drawn from circumstantial evidence such as routine practice have been held insufficient in cases where there is evidence of alternative methods of delivery. In Baker, for example, there was testimony that the letters involved might have been delivered by hand, and the court held that in those circumstances the circumstantial proof of mailing was insufficient to exclude a reasonable doubt. 50 F.2d at 123; see also Fassoulis, 445 F.2d at 17 (distinguishing Baker as holding that method of indirect proof is insufficient where there is evidence of alternative method of delivery). However, not all evidence of an alternative method of delivery will foreclose a conviction based on circumstantial evidence of mailing. See United States v. Huber, 603 F.2d 387, 399 (2d Cir.1979). In Huber, there was testimony that checks like those at issue were typically mailed in the" }, { "docid": "23295034", "title": "", "text": "can fault him for following the black letter as closely as he could. Compare O’Gee v. Dobbs Houses, Inc., 570 F.2d 1084, 1088-1089, 1091 n. 1 (2 Cir. 1978). If the jury had wanted the charts during its deliberations, it could have asked for a reading of the relevant portion of Cromwell’s testimony including their display. Other objections with regard to the handling of the handwriting testimony do not warrant discussion. (7) The mail fraud counts. There is no merit in appellants’ contention that there was insufficient evidence of use of the mails. While there was no proof that the fictitious returns were mailed, this is not fatal if there was sufficient evidence that the refund checks were, since the fictitious returns “caused” these mailings and the obtaining of the checks was the very goal of the scheme. See Per-eira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 98 L.Ed. 435 (1954); contrast Kann v. United States, 323 U.S. 88, 94, 65 S.Ct. 148, 89 L.Ed. 88 (1944); Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960); and United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974), where it was held that the object of the scheme had been attained prior or was insufficiently related to any use of the mails. The Government’s proof included disbursement sheets showing the mailing of the refund checks and a stipulation that the custom and practice of the disbursing office was to mail the checks on or about the date when they were drawn. Beyond this was the evidence warranting the jury in finding that the checks had been received at the various addresses; there is no suggestion that such checks are ever transmitted otherwise than by mail. Defendants’ final point is based on United States v. Henderson, 386 F.Supp. 1048 (S.D.N.Y.1974). Judge Weinfeld there dismissed mail fraud counts of an indictment where the scheme as charged in other counts was to defraud the United States by evading and defeating the payment of income taxes in violation of I.R.C. § 7201 and" }, { "docid": "13529758", "title": "", "text": "While a kitchen fire did occur at the residence of Waterman’s girlfriend at 1335 South 30th Street in Omaha, the Government presented no evidence that this fire resulted from arson. The insurance company adjuster who adjusted this fire testified that his investigation discovered no evidence of arson. The Omaha fire department conducted an investigation and reached a similar conclusion. In addition, the insurance adjuster contradicted Gamst’s testimony, stating that his company paid out only $13,947.38 on the fire. Based on this evidence, we conclude that the record lacks substantial evidence to support Waterman’s conviction on this count. The only evidence linking Waterman to the fire came from Gamst, whose testimony was, at best, only marginally probative. In the absence of any evidence of arson, the Government’s case must fail. Viewing the evidence in this light, we are constrained to reverse Waterman’s conviction on count V for lack of substantial evidence to support the conviction. Waterman argues that the mailings introduced into evidence by the Government were too remote from the scheme and from himself to support mail fraud convictions. The mail fraud statute does not encompass all frauds, but extends only to those that invoke usage of the United States Postal Service. This court recently outlined the requisite relationship between the fraudulent scheme and the use of the mails: To establish a violation of § 1341 the government must prove a scheme to defraud and the mailing of a letter or other instrument for the purpose of executing the scheme. Although “it is not necessary that the scheme contemplate the use of the mails as an essential element,” it is necessary for the mailings to be “sufficiently closely related to [appellant’s] scheme to bring his conduct within the statute.” If the appellant’s scheme reached fruition prior to the mailings as did the respondent’s in United States v. Maze, [414 U.S. 395, 402, 94 S.Ct. 645, 649, 38 L.Ed.2d 603 (1974) ], the mailings were not sufficiently related to the scheme to bring his conduct within the statute. [United States v. Sedovic, 679 F.2d 1233, 1237-38 (8th Cir.1982), quoting United States" }, { "docid": "22598397", "title": "", "text": "already been paid to one of appellant’s entities by the hospital before the mailing. However, regardless of whether all of the invoices had already been paid, the mailing to obtain reimbursement was a part of this ongoing scheme to defraud. As stated earlier, the jury could find that government funding of hospital expansion was essential to the prosperity of appellant’s fraudulent scheme. In Maze, supra, 414 U.S. 395, 94 S.Ct. 645, the defendant stole a credit card and fraudulently used it to obtain food and lodging at motels. The mails were used by the motels to obtain payment on invoices from banks. Maze’s “scheme reached fruition when he checked out of the motel, and there is no indication that the success of his scheme depended in any way on which of his victims ultimately bore the loss.” Id. at 402, 94 S.Ct. at 649. Further, the mailings there “increased the probability that [the] respondent would be detected and apprehended.” Id. at 403, 94 S.Ct. at 650. Thus, in Maze, the mailings were not only not in furtherance of a scheme to defraud, they threatened to thwart it. Here, viewed realistically, the mailings were an integral part of Huber’s fraudulent scheme. As stated earlier, the jury could find that the government funding was essential to generate the funds for hospital expansion on which the continuance of the illegal enterprise depended. See generally United States v. Hasenstab, 575 F.2d 1035, 1038-39 (2d Cir. 1978). Therefore, there was sufficient evidence that the mailings were in furtherance of a scheme to defraud. Finally, appellant argues that his request for an order withdrawing several of the 18 specifications of perjury set forth in Count 40 should have been granted. We have carefully reviewed the objections to each specification and find that the truthfulness of each was a question that was properly submitted to the jury. United States v. Bonacorsa, 528 F.2d 1218 (2d Cir.), cert. denied, 426 U.S. 935, 96 S.Ct. 2647, 49 L.Ed.2d 386 (1976). There was no “fundamental ambiguity or impreciseness in the questioning,” id. at 1221, and we cannot say that any" }, { "docid": "2735359", "title": "", "text": "offices. As a result of the scheme, the banks suffered a loss in excess of $700,000. The evidence established that, while the defendant also had conducted legitimate business activity during the operation of the scheme, the majority of transactions in each of the bank accounts involved were attributable to the kite. In addition, the checks used for the kite were written for much larger amounts than were those written to pay for legitimate transactions. The government did not present any evidence as to how the bank offices cleared checks with one another. Thus, we assume that the checks were not cleared via the mail. As regards the mail, the government established only that the defendant received new, personalized, blank checks and deposit slips from a printing company through the mail, and received monthly bank statements for each of the business accounts used in the kite through the mail. Apparently, all deposits were made in person. II. Discussion To uphold this conviction, we must find that the government produced sufficient evidence to allow a jury to find, beyond a reasonable doubt: that the defendant had devised a scheme to defraud the banks which maintained his accounts; and that he sent, or caused to be sent, a letter or some other article through the mail in executing the scheme. 18 U.S.C. § 1341 (1982). United States v. Kaminski, 692 F.2d 505, 511 (8th Cir.1982) (quoting Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 362, 98 L.Ed. 435 (1954)); United States v. Cooper, 596 F.2d 327, 329 (8th Cir.1979). In turn, the mailing element of the statute consists of two requirements: that the defendant “caused” the use of the mails; and that this use was for the purpose of executing the scheme. United States v. Moss, 591 F.2d 428, 436 (8th Cir. 1979) (quoting United States v. Maze, 414 U.S. 395, 399-400, 94 S.Ct. 645, 648-649, 38 L.Ed.2d 603 (1974)); United States v. Babbitt, 583 F.2d 1014, 1022 (8th Cir.1978) (quoting United States v. Brown, 540 F.2d 364, 375-76 (8th Cir.1976)), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59" }, { "docid": "15481267", "title": "", "text": "to prove the criminal character or disposition of the defendant and was not of such a prejudicial nature as to outweigh its probative value. The court included appropriate limiting instructions in its charge to the jury, and it did not abuse its discretion in admitting the evidence. United States v. Magnano, 543 F.2d 431 (2d Cir. 1976); United States v. Grady, 544 F.2d 598 (2d Cir. 1976). Appellant’s reliance on United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974), for the argument that the mail fraud counts in the indictment should have been dismissed as not within the purview of the statute, 18 U.S.C. § 1341, is misplaced. Whereas in Maze, the Court ruled that the mail fraud statute had not been violated because the scheme in question had “reached fruition” prior to the mailings, 414 U.S. at 402, 94 S.Ct. 645, in the present case, the use of the mails af forded appellant vital time to execute the fraud and was an integral part of the scheme. The frauds were carried out by Braunig’s presentation of forged Canadian checks to Barclay’s Bank of New York for deposit in her name. Thereafter, taking advantage of Barclay’s practice of crediting international checks to depositors’ accounts before receiving confirmation from the drawee bank that the checks were valid, Braunig withdrew the funds from the account during the time the checks were in the international mails bound for Canada for collection and before Barclay’s could be warned by the Canadian drawee bank that the checks were forged. The district court, therefore, properly denied Braunig’s motion to dismiss the mail fraud counts. United States v. Marando, 504 F.2d 126 (2d Cir.), cert. denied sub nom. Berardelli v. United States, 419 U.S. 1000, 95 S.Ct. 317, 42 L.Ed.2d 275 (1974); United States v. Cohen, 518 F.2d 727 (2d Cir.), cert. denied sub nom. Duboff v. United States, 423 U.S. 926, 96 S.Ct. 270, 46 L.Ed.2d 252 (1975); United States v. Greenberg, 534 F.2d 523 (2d Cir. 1976). We do not find appellant’s other contentions to be meritorious and, therefore, no" }, { "docid": "1851022", "title": "", "text": "We are not unmindful that installment and other credit sales have created financial problems of substantial proportions for consumers and creditors alike. Many consumers are financially incapable of paying outstanding debts, despite good intentions. Consequently, we cannot sanction a scheme whereby would-be borrowers fraudulently obtain loans that would not otherwise be available to them, regardless of whether they might have intended to repay so long as they were capable of doing so. III. USE OF THE MAILS Finally, appellant asserts that his convictions on the five counts of mail fraud (counts 22-26) cannot stand. Each count arises from the mailing of an installment sales contract to the lender by the automobile dealer. Appellant argues that, because these mailings occurred after each applicant had taken possession of an automobile, they occurred after the scheme to defraud had reached fruition and were not sufficiently connected to the fraud to fall within the scope of the statute. If appellant is correct, then the convictions are invalid. See United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974). For conviction under the mail fraud statute, the mails must be used “for the purpose of executing” the fraudulent scheme, and not merely “as a result of” such scheme. See id. at 405, 94 S.Ct. 645. In Kann v. United States, 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed. 88 (1944), the Supreme Court held that a scheme involving fraudulently obtained checks was completed once the checks were cashed. The Court reasoned that the defendants had intended to receive money, and that the money had been received “irrevocably” when they cashed the checks. Thus, when the payor banks mailed the checks to the drawee bank for collection, the mailings were not for the purpose of executing the scheme. See id. at 94, 65 S.Ct. 148. Similarly, in Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960), the defendants had obtained gasoline and other products and services by the unauthorized use of a credit card issued to their employer. The defendants were charged with mail fraud for having" }, { "docid": "8779304", "title": "", "text": "L.Ed.2d 784 (1969). . It has been recognized that each mailing in execution of a fraudulent scheme constitutes a separate offense of mail fraud. See, e. g., Atkinson v. United States, 344 F.2d 97, 98 (8th Cir. 1965); Hanrahan v. United States, 121 U.S.App.D.C. 134, 348 F.2d 363, 366 (1965). Stewart argues that his convictions on counts 8 and 9 cannot stand because, although they are based on mailings of separate checks, each representing a monthly payment on a separate fraudulent contract, the checks were sent to one investor in a single envelope. Thus, he contends, there was but one “mailing.” The argument cannot stand. The essence of the offense is use of the mails to defraud. Each check was mailed pursuant to the scheme to lull investors into a sense of security as to their investments, enabling Western to continue to operate unimpeded. That the two checks, each of which independently helped to execute the plan, were sent in one envelope is of no consequence. . Stewart contends that to find that the mailings were part of the fraud’s execution would be to broaden unduly the construction previously given that element of the crime. We agree that to sustain a conviction there must be more than a showing of a scheme to defraud, defendant’s involvement, and the fact that a mailing occurred. See United States v. Maze, 414 U.S. 395, 399-402, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974); Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960); Kann v. United States, 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed. 88 (1944); United States v. Kaplan, 554 F.2d 958, 965 (9th Cir. 1977). There must be proof that the mailing “was in furtherance of the scheme to defraud.” United States v. Kaplan, 554 F.2d at 965. Unlike Maze, Parr, and Kann, however, where mailings took place after the defendants had accomplished their criminal objective, this case resembles more closely United States v. Sampson, 371 U.S. at 80, 83 S.Ct. 173, in which the “mailings . . were designed to lull the victims into a false" }, { "docid": "22598394", "title": "", "text": "we hold that the district judge did not abuse his broad discretion in deciding that this witness was not qualified in this case. See, e. g., Hamling v. United States, 418 U.S. 87, 108, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Bermudez, 526 F.2d 89, 98 (2d Cir. 1975), cert. denied, 425 U.S. 970, 96 S.Ct. 2166, 48 L.Ed.2d 793 (1976). This is particularly so in light of the fact that two psychiatrists did testify as experts concerning appellant’s mental state, and thus the defense based on appellant’s asserted lack of free will was presented to the jury. Appellant challenges the sufficiency of the evidence on four of the mail fraud counts. These challenges are aimed at more than simply reversal of those convictions. Relying on a case in the Third Circuit for the proposition, appellant argues that if any of the mail fraud counts are reversed, the RICO count must be reversed as well, because it is impossible to know which mail fraud counts the jury relied on in finding the requisite “pattern of racketeering activity.” United States v. Brown, 583 F.2d 659, 669 (3d Cir. 1978). We need not decide whether this circuit would agree with that analysis, cf. United States v. Harness, supra, 503 F.2d at 438 (“Convictions on any two of these [travel fraud] counts were sufficient under § 1961(5) to establish the ‘pattern of racketeering activity’ necessary for a conviction under § 1962(b).”), because the evidence was sufficient to sustain all the mail fraud counts submitted to the jury. Appellant argues that as to two of the counts, 25 and 26, there was insufficient evidence of use of the mails. Those counts concerned checks paid by two of the hospitals to Medical Facilities. Officials from both hospitals testified that checks were typically mailed in the ordinary course of business. Although there was testimony that some checks were picked up by hand, they were identified as checks other than those specified in Counts 25 and 26. Witnesses could not recall whether any checks other than those identified were picked up by hand. This" }, { "docid": "22598395", "title": "", "text": "requisite “pattern of racketeering activity.” United States v. Brown, 583 F.2d 659, 669 (3d Cir. 1978). We need not decide whether this circuit would agree with that analysis, cf. United States v. Harness, supra, 503 F.2d at 438 (“Convictions on any two of these [travel fraud] counts were sufficient under § 1961(5) to establish the ‘pattern of racketeering activity’ necessary for a conviction under § 1962(b).”), because the evidence was sufficient to sustain all the mail fraud counts submitted to the jury. Appellant argues that as to two of the counts, 25 and 26, there was insufficient evidence of use of the mails. Those counts concerned checks paid by two of the hospitals to Medical Facilities. Officials from both hospitals testified that checks were typically mailed in the ordinary course of business. Although there was testimony that some checks were picked up by hand, they were identified as checks other than those specified in Counts 25 and 26. Witnesses could not recall whether any checks other than those identified were picked up by hand. This testimony of an alternative mode of delivery is simply too scanty, compare United States v. Baker, 50 F.2d 122, 123 (2d Cir. 1931) (testimony by lawyer that “a great many letters delivered by his office were not mailed”), to prevent the use of customary business practices as proof of mailing. See United States v. Toliver, 541 F.2d 958, 966 (2d Cir. 1976); United States v. Fassoulis, 445 F.2d 13, 17 (2d Cir.), cert. denied, 404 U.S. 858, 92 S.Ct. 110, 30 L.Ed.2d 100 (1971). As to Counts 32 and 33, appellant claims that use of the mails by the hospital to deliver monthly payment requisitions to the New York State Department of Health came only after consummation of the fraudulent transactions, and thus could not have been “for the purpose of executing [a] scheme or artifice [to defraud]” within the meaning of 18 U.S.C. § 1341, under United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974). Appellant’s point is that all the invoices on which the requisitions were based had" } ]

[ { "docid": "17669695", "title": "", "text": "here * * *.” All this testimony shows that the guns were seized before the arrest, and that the arrest in fact was caused by the discovery of the guns. The police had gone to appellant’s apartment with the purpose of checking on the tip from the “reliable source” that the guns were there, and upon verifying that tip they arrested appellant. A number of courts have held in similar circumstances that such a search is not incident to the ar rest, but rather the arrest is in truth incident to the search. United States v. Pollack, D.C.D.N.J., 64 F.Supp. 554, 558; United States v. Sully, D.C.S.D.N.Y., 56 F.Supp. 942; Henderson v. United States, 4 Cir., 12 F.2d 528, 51 A.L.R. 420; Cf. McKnight v. United States, 87 U.S.App.D.C. 151, 183 F.2d 977; United States v. McCunn, D.C.S.D.N.Y., 40 F.2d 295; United States v. Setaro, D.C.D. Conn., 37 F.2d 134. And of course the search cannot be justified by what it turned up. United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210; Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520. Since there was no arrest to which the search and seizure were incident, and since there was no search warrant, the search and the seizure of the guns were unlawful under the Fourth Amendment to the Constitution of the United States, for there were no circumstances which could justify dispensing with the necessity for a search warrant. Assuming, without deciding, that the informer’s tip would have given the police probable cause to support an arrest without a warrant, this did not constitute “exceptional circumstances” which supported the search or seizure without a search warrant. It must be said of this case, as the Supreme Court said of United States v. Jeffers, 342 U.S. 48, 51, 52, 72 S.Ct. 93, 95, 96 L.Ed. 59, which arose a few years ago in this jurisdiction : “The Fourth Amendment prohibits both unreasonable\" searches and unreasonable seizures, and its protection extends to both ‘houses’ and ‘effects.’ Over and again this Court has emphasized that" } ]

[ { "docid": "22109175", "title": "", "text": "condemned in Brock v. United States, 223 F.2d 681 (5 Cir. 1959), and by this court in California v. Hurst, 9 Cir., 325 F.2d 891 (1963). The cases relied on by the defendant (McKnight v. United States, 87 U.S.App.D.C. 151, 183 F.2d 977 (1950); Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949); United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct, 430, 94 L.Ed. 653 (1950); United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954); Lee v. United States, 98 U.S.App.D.C. 97, 232 F.2d 354 (1956)) are all cases wherein the intent of the several officers at the time of their entry on to the premises without possessing a legal warrant for search or arrest, was actually either to arrest without warrant or search without warrant, and in each case (except Rabinowitz) their “forced-able” entry was made (i. e., either by physical force or by compulsion 'of authority) without a legal warrant for search or arrest. The basis of appellant’s contention that the officers did not'have a valid consent which would authorize -their entering the premises is that the child Pamela could not have given consent to .the officers to enter the home. The cases which the appellant has urged in support of this contention (United States v. Linderman, 32 F.Supp. 123 (D.C.E.D.N.Y.1940); People v. Jennings, 142 Cal.App.2d 160, 298 P.2d 56; Nelson v. United States, 93 U.S.App.D.C. 14, 208 F.2d 505 (1953); United States v. Block, 202 F.Supp. 705 (D.C.S.D.N.Y.1962)), like those cited (supra) in support of appellant’s first ground, are cases where the officers, without warrants, went to the premises for the purpose of search, and therein lies the difference between the factual situation in those cases and the facts accepted" }, { "docid": "22216802", "title": "", "text": "are sufficient to warrant a man of reasonable caution in the belief that an offense has been or is being committed. 338 U.S. at 175, 69 S.Ct. 1302. Considering each ground for suspicion and the totality of circumstances, we hold that there was no probable cause to conduct the search. Since the Carroll doctrine is inapplicable, the instant case does not raise the question whether, because of the arrest of Gonzalez and the police custody of the car, there was ample time for the officers to obtain a warrant. See Preston v. United States, 1964, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777; Staples v. United States, 5 Cir. 1962, 320 F.2d 817, 920. III. The United States relies on the well-recognized exception that as an incident to arrest, either with or without a warrant, the arresting officers may search the person arrested and his immediate surroundings. Harris v. United States, 1947, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399; United States v. Rabinowitz, 1950, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. A. The rationale for the search incident to arrest exception is the historical right of an arresting officer to search the place of arrest and the practical consideration that once an arrestee’s privacy is invaded by his being placed in lawful custody, there is little or no additional invasion in searching him or the immediate surroundings which the police have entered to effect the arrest. Again, however, fidelity to the Fourth Amendment commands that the exception not engulf the rule. The lawfulness of an arrest does not always legitimate a search. General or exploratory searches are condemned even when they are incident to a lawful arrest. United States v. Rabinowitz, 339 U.S. at 62, 70 S.Ct. 430, 94 L.Ed. 953, Carlo v. United States, 2 Cir., 1961, 286 F.2d 841, 846. The arrest must not be a mere pretext for an otherwise illegitimate search. Henderson v. United States, 4 Cir. 1926, 12 F.2d 528, 51 A.L.R. 420; Worthington v. United States, 6 Cir. 1948, 166 F.2d 557; McKnight v. United States, 1950, 87 U.S.App.D.C." }, { "docid": "3251933", "title": "", "text": "arrest warrant for Duane Peak personally in his possession. Such possession is not required by the Constitution in order to validate an entry to effect an arrest. United States v. Leftwich, 461 F.2d 586 (C.A. 3rd Cir. 1972), cert. denied, 409 U.S. 915, 93 S.Ct. 247, 34 L.Ed.2d 178; Gill v. United States, 421 F.2d 1353 (C.A. 5th Cir. 1970), cert. denied, 400 U.S. 851, 91 S.Ct. 85, 27 L.Ed.2d 89. See Rule 4(c)(3) of the Federal Rules of Criminal Procedure. The issuance of a valid arrest warrant, however, does not serve as a license to the police to enter a private dwelling to effect an arrest. The Fourth Amendment secures to the people of this nation “the right . . . to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In interpreting the meaning of this fundamental guarantee courts have held that a search is not reasonable unless the officer executing the arrest warrant had probable (or reasonable) cause to believe that the person named in the warrant is on the premises at the time of the entry. Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); United States v. Brown, 151 U.S.App.D.C. 365, 467 F.2d 419 (1972); Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970); Michael v. United States, 393 F.2d 22 (C.A. 10th Cir. 1968); United States v. Harris, 391 F.2d 384 (C.A. 6th Cir. 1968); United States v. Chambers, 382 F.2d 910 (C.A. 6th Cir. 1967); Lankford v. Gelston, 364 F.2d 197 (C.A. 4th Cir. 1966); United States v. Alexander, 346 F.2d 561 (C.A. 6th Cir. 1965); United States v. Blair, 366 F.Supp. 1036 (U.S.D.C.S.D.N.Y.1973); United States v. Watson, 307 F.Supp. 173 (U.S.D.C.D.C.1969); United States v. Sims, 231 F.Supp. 251 (U.S.D.C.Md. 1964). See D. Rotenberg and L. Tanzer, “Searching for the Person to be Seized,” 35 Ohio State Law Journal 56-77 (1974) and Note, “The Neglected Fourth Amendment Problem in Arrest Entries,” 23 Stanford Law Review 998-1008 (May 1971). The rationale for this requirement is that, unless the person sought is on" }, { "docid": "18411143", "title": "", "text": "was unlawful in the absence of any exceptional circumstances. That ruling was not appealed from and it has no relevance to evidence upon which conviction rests. . Warrantless searches are per se unreasonable absent “exigent circumstances.” Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). . As Mr. Justice White noted in dissent in Coolidge v. New Hampshire, supra, 403 U.S. at 510-511, 91 S.Ct. at 2060 (footnote omitted) : “As to persons, the overwhelming weight of authority is that a police officer may make an arrest without a warrant when he has probable cause to believe the suspect has committed a felony.” However, we note too the concern expressed by Mr. Justice Stewart in Goolidge of the dissimilar requirements for warrantless arrests and searches. He laments : “Indeed, if Mr. Justice White is correct that it has generally been assumed that the Fourth Amendment is not violated by the warrantless entry of a man’s house for purposes of arrest, it might be wise to re-examine the assumption. Such a re-examination ‘would confront us with a grave constitutional question, namely, whether the forceful nighttime entry into a dwelling to arrest a person reasonably believed within, upon probable cause that he had committed a felony, under circumstances where no reason appears why an arrest warrant could not have been sought, is consistent with the Fourth Amendment.’ Jones v. United States, 357 U.S. 493, at 499-500, 78 S.Ct. 1253, 2 L.Ed.2d 1514. But we find it unnecessary to decide the question in this case. Coolidge v. New Hampshire, supra, 403 U.S. at 480-481, 91 S.Ct. at 2045. In United States v. Davis, 461 F.2d 1026 (3d Cir., filed May 31, 1972), this Court found it unnecessary to decide the same issue, terming it an “open question.” The facts of that case were held to present an exception to the warrant requirement. Nor should we unnecessarily decide this difficult constitutional question here, for the arrests were made in a public place. Cf. Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970) (en banc), holding that the" }, { "docid": "22941199", "title": "", "text": "the real purpose of the invasion was not an arrest but a search. The Supreme Court has specifically held that “An arrest may not be used as a. pretext to search for evidence.” United States v. Lefkowitz, 285 U.S. 452, 467, 52 S.Ct. 420, 424, 76 L.Ed. 877, 82 A.L.R. 775. In upholding the search in the Harris case the Court pointed out that it was not “a case in which law-enforcement officers have entered premises ostensibly for the purpose of making an arrest but in reality for the purpose of conducting a general exploratory search for merely evidentiary materials tending to connect the accused with some crime.” Harris v. United States, 331 U.S. 145, 153, 67 S.Ct. 1098, 1102, 91 L.Ed. 1397. It is settled law that “when it appears, as it does here, that the search and not the arrest was the real object of the officers in entering upon the premises, and that the arrest was • a pretext for or at the most an incident of the search,” the search is not reasonable within the meaning of the Constitution. Henderson v. United States, 4 Cir., 12 F.2d 528, 531, 51 A.L.R. 420. In the recent Rabinowitz case the Supreme Court said: “The relevant test is * * * whether the search was reason able. That criterion in turn depends upon the facts and circumstances — the total atmosphere of the case.” United States v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct. 430, 435. The Court there sustained the reasonableness of a peaceable search and seizure with an arrest warrant but without a search warrant, because of five circumstances. The first two were: “(1) the search and seizure were incident to a valid arrest; (2) the place of the search was a business room to which the public, including the officers, was invited * * *.” 339 U. S. at pages 63-64, 70 S.Ct. at page 434. The Kent Place seizure lacked these circumstances. In the Rabinowitz case the police neither rejected a convenient opportunity to make a lawful arrest in a public street, nor broke into" }, { "docid": "8691476", "title": "", "text": "by the observation of the building was insignificant and not used or set forth in his presentment to the commissioner as reflected by the affidavit for the search warrant. As said by Judge McAllister in the Worthington case [166 F.2d 566], “all the circumstances disclose that the arrest was made as a pretext to search for evidence, and on that ground alone, the evidence should have been suppressed.” An arrest must be for the offense and not used as a pretext to search for evidence. United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, 82 A.L.R. 775. The following quotation is taken from the case of Henderson v. U. S., 4 Cir., 12 F.2d 528, 51 A.L.R. 420, which is quoted with approval in Worthington v. U. S., supra: “It is admitted that the government officers had no warrant either for the arrest of the defendant or for the search of his premises. There is no showing or contention that it was necessary to arrest defendant without a warrant to prevent his escape, and a careful consideration of the evidence leads irresistibly to the conclusion that the search of his dwelling was made, not as an incident of the arrest, but as the chief object which the officers had in view in entering upon his premises. Instead of the search being incidental to the arrest, therefore, the arrest was incidental to if not a mere pretext for the search. The question is whether a search made under such circumstances violates the constitutional rights of the defendant. We think that it does.” At page 528 of 12 F.2d “And when it appears, as it does here, that the search and not the arrest was the real object of the officers in entering upon the premises, and that the arrest was a pretext for or at the most an incident of the search, ought such search be upheld as a reasonable one within the meaning of the Constitution ? Manifestly not.” At page 531 of 12 F.2d. From the whole evidence in this case I must conclude both" }, { "docid": "5066538", "title": "", "text": "[395 U.S. 685, [752, 89 S.Ct. 2034, 23 L.Ed.2d 685] (1969)], is that it proves too much. If we were to agree with Mr. Justice White that the police may, whenever they have probable cause, make a warrantless entry for the purpose of making an arrest, and that seizures and searches of automobiles are likewise per se reasonable given probable cause, then by the same logic any search or seizure could be carried out without a warrant, and we would simply have read the Fourth Amendment out of the Constitution. Indeed, if Mr. Justice White is correct that it has generally been assumed that the Fourth Amendment is not violated by the warrantless entry of a man’s house for purposes of arrest, it might be wise to re-examine the assumption. Such a re-examination “would confront us with a grave constitutional question, namely, whether the forceful nighttime entry into a dwelling to arrest a person reasonably believed within, upon probable cause that he had committed a felony, under circumstances where no reason appears why an arrest warrant could not have been sought, is consistent with the Fourth Amendment.” Jones v. United States, 357 U.S. [493], at 499-500, [78 S.Ct., at 1257] [(1958)]. None of the cases cited by Mr. Justice White disposes of this “grave constitutional question.” [Emphasis in original.] Despite such unsettled legal questions, there are settled minimum legal standards which govern warrantless entries into homes. Thus, in Lankford v. Gelston, 364 F.2d 197, 202-03 (4th Cir. 1966) (en banc), Judge Sobeloff stated: All members of the Police Department, from the Commissioner down to the raw recruit, are expected to be familiar with the principle that if the police intend to conduct a search of a man’s home for a suspect, they must at least have probable cause to believe that he is on the premises. The doctrine is not subtle; it touches the very heart of law enforcement practices, and has found expression in numerous judicial opinions. In Lankford, the focus was upon the search of a large number of homes of persons other than the suspect, and not" }, { "docid": "22216803", "title": "", "text": "653. A. The rationale for the search incident to arrest exception is the historical right of an arresting officer to search the place of arrest and the practical consideration that once an arrestee’s privacy is invaded by his being placed in lawful custody, there is little or no additional invasion in searching him or the immediate surroundings which the police have entered to effect the arrest. Again, however, fidelity to the Fourth Amendment commands that the exception not engulf the rule. The lawfulness of an arrest does not always legitimate a search. General or exploratory searches are condemned even when they are incident to a lawful arrest. United States v. Rabinowitz, 339 U.S. at 62, 70 S.Ct. 430, 94 L.Ed. 953, Carlo v. United States, 2 Cir., 1961, 286 F.2d 841, 846. The arrest must not be a mere pretext for an otherwise illegitimate search. Henderson v. United States, 4 Cir. 1926, 12 F.2d 528, 51 A.L.R. 420; Worthington v. United States, 6 Cir. 1948, 166 F.2d 557; McKnight v. United States, 1950, 87 U.S.App.D.C. 151, 183 F.2d 977; United States v. Harris, 6 Cir. 1963, 321 F.2d 739; Taglavore v. United States, 9 Cir.1961, 291 F.2d 262. The search must have some relation to the nature and purpose of the arrest. Taglavore v. United States, supra; Charles v. United States, 9 Cir. 1960, 278 F.2d 386; United States v. Tate, D.Del. 1962, 209 F.Supp. 762; United States ex rel. Krogness v. Gladden, D.Ore.1965, 242 F.Supp. 499. Gonzalez was arrested for a minor traffic offense. It is not clear at just what time the traffic arrest turned into a narcotics arrest, but it could not have been until after the search. Until that time there was no probable cause to believe that the vehicle was transporting narcotics and no probable cause to make an arrest for the possession of drugs. See Henry v. United States, 1959, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 184, in which the Supreme Court held that the defendant’s arrest took place when the officers stopped his car, even though a formal arrest was made" }, { "docid": "23107338", "title": "", "text": "other cases, on Work v. United States, 1948, 100 U.S. App.D.C. 237, 243 F.2d 660; Johnson v.. United States, 1948, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; Trupiano v. United States, 1948, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663; McDonald v. United States, 1948, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153; and Jones v. United States, 1958, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514. In Work v. United States, there was no arrest prior to the search. In Johnson v. United States the search was not incident to a lawful arrest because made without a warrant and without “probable cause”. McDonald v. United States and Jones v. United States both deal with the problem of entry into homes for the purpose of search and seizure and not such entry for purposes of arrest. Reliance on Trupiano v. United States is misplaced, for the holding in that case that a valid arrest does not necessarily make a search incident to that arrest without a search warrant valid was expressly overruled in United States v. Rabinowitz, 1950, 339 U.S. 56, 70 S.Ct. 430, 435, 94 L.Ed. 653, the Su preme Court holding: “To the extent that Trupiano v. United States, 334 U.S. 699 [68 S.Ct. 1229, 92 L.Ed. 1663] requires a search warrant solely upon the basis of the practicability of procuring it rather than upon the reasonableness of the search after a lawful arrest, that case is overruled.” The instant case is not solely a search and seizure case. It is a case of search and seizure incident to a lawful arrest. The only problem, therefore, is whether, within the dictates of the Fourth Amendment, the search and seizure was lawful as incident to a valid arrest. (See footnote 4 for list of property seized.) The search was conducted only in Mrs. Williams’ home, yard, and the trash area used in connection therewith, and did not extend beyond the limits of her property. We believe that the search was clearly reasonable in extent. United States v. Rabinowitz, supra; Harris v. United States, 1947," }, { "docid": "22543046", "title": "", "text": "to act precipitately. He should revoke bail only where that action is clearly required; and he should shackle the defendants in court, whether with chains or with marshals, only on a clear showing that the defendants pose an immediate threat to the peace and order of the trial. . Justice Harlan, in Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958), noted that “whether the forceful nighttime entry into a dwelling to arrest a person reasonably believed within, upon probable cause that he had committed a felony, under circumstances where no reason appears why an arrest warrant could not have been sought” raises a “grave constitutional question.” 357 U.S. at 499-500, 78 S.Ct. at 1257. . Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). . Ford & Kimble v. United States, 122 U.S. App.D.C. 259, 352 F.2d 927 (1965). . See Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925) ; District of Columbia v. Little, 85 U.S.App.D.C. 242, 178 F.2d 13 (1949), aff’d on other grounds, 339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599 (1950). . Justice Butler said in Agnello v. United States, 269 U.S. at 33, 46 S.Ct. at 6: “Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause.” . There is scholarship tending to show that some of the earlier key provisions on the necessity of a warrant misread the lessons of history. T. Taylor, Two Studies in, Constitutional Interpretation 38-41 (1969). . Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877 (1959). . This was the conclusion of Judge Pretty-man in District of Columbia v. Little, supra note 4. . Judge Prettyman took particular account of his opinions in Smith v. United States, 103 U.S.App.D.C. 48, 254 F.2d 751, cert. denied, 357 U.S. 937," }, { "docid": "23162613", "title": "", "text": "circumstances, the officers could justifiably have believed that Mapp had left heroin in the apartment and that the occupant or occupants were assisting Mapp in his criminal activities. All the information then available to the Task Force agents gave them more than ample probable cause to arrest. C. The Warrantless Arrest Although, as a general rule, officers may arrest without a warrant upon probable cause to believe that a felony has been or is being committed see e. g., 18 U.S.C. § 3052, it remains “a grave constitutional question . . . whether the forceful nighttime, entry into a dwelling to arrest a person reasonably believed within, upon probable cause that he had committed a felony, under circumstances where no reason appears why an arrest warrant could not have been sought, is consistent with the Fourth Amendment.” Jones v. United States, 357 U.S. 493, 499-500, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958). The doubts expressed by Justice Harlan in Jones have not been resolved, and the question remains open, particularly after the Court’s recent decision in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), id. at 480, 91 S.Ct. 2022 (Opinion of Stewart), id. at 492, 91 S.Ct. 2022 (Harlan concurrence). At least one court has concluded that nighttime entry into a dwelling place for the purpose of arrest may not be made without an arrest warrant, absent exigent circumstances justifying a warrantless entry, Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385, 391 (1970) (en banc). Indeed, the instant case may in certain respects, present a stronger argument than Dorman for vindicating the Fourth Amendment’s safeguard of privacy by requiring a warrant for a nighttime arrest in a dwelling. In Dorman, the Court explicitly found that the police did not intend, at the time of entry, to search for property. 435 F.2d at 391. Here, however, there is more than a suggestion that at least one purpose of the warrant-less entry was to search the apartment for “the package that Sonny brought in earlier.” And it is, of course, axiomatic that" }, { "docid": "13946792", "title": "", "text": "felony has been committed and that the person arrested committed it. Currently there appears to be a certain amount of uneasiness with this dichotomy between search and arrest. The Supreme Court, in Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), held that the issuance of an arrest warrant under Rules 3 and 4, Fed.R.Crim.P., must be based on the judgment of “a neutral and detached magistrate” who, in determining probable cause, “should not accept without question the complainant’s mere conclusion that the person whose arrest is sought has committed a crime.” In Jones v. United States, supra Note 1, 357 U.S. at 499-500, 78 S.Ct. at 1257, where the Government sought to justify the entry of a home to arrest without an arrest warrant, the Supreme Court stated: “These contentions, if open to the Government here, would confront us with a grave constitutional question, namely, whether the forceful nighttime entry into a dwelling to arrest a person reasonably believed within, upon probable cause that he had committed a felony, under circumstances where no reason appears why an arrest warrant could not have been sought, is consistent with the Fourth Amendment. * * * ” This court has several times ruled on the Jones situation and has held that such arrests are illegal in the District of Columbia. Morrison v. United States, 104 U.S.App.D.C. 352, 357, 262 F.2d 449, 454 (1958); Accarino v. United States, 85 U.S.App.D.C. 394, 402, 179 F.2d 456, 464 (1949); cf. District of Columbia v. Little, 85 U.S.App.D.C. 242, 246, 178 F.2d 13, 17, 13 A.L.R.2d 954 (1949), affirmed on other grounds, 339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599 (1950). And in Gatlin v. United States, 117 U.S.App.D.C. 123, 128 n. 10, 326 F.2d 666, 671 n. 10 (1963), we said: “The police here, as in Wong Sun [v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)], acted without an arrest warrant. Thus they failed to place their information before a ‘neutral and detached magistrate’ who obviously is in a better position to determine" }, { "docid": "6319185", "title": "", "text": "U.S. 145, 151, 67 S.Ct. 1098, 91 L.Ed. 1399; United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; Wilson v. Schnet-tler, 365 U.S. 381, 383, 81 S.Ct. 632, 5 L.Ed.2d 620. An arrest may not be used as a pretext or subterfuge for making a search of premises without a search warrant where ordinarily one would be required under the Fourth Amendment. If, in fact, the primary purpose of forcibly entering a person’s home is to search for evidence with which to convict him of crime, the evidence so obtained is not admissible in court. United States v. Lefkowitz, 285 U.S. 452, 467, 52 S.Ct. 420, 76 L.Ed. 877; Harris v. United States, 331 U.S. 145, 153, 67 S.Ct. 1098, 91 L.Ed. 1399; Abel v. United States, 362 U.S. 217, 225-26, 80 S.Ct. 683, 4 L.Ed.2d 668; Jones v. United States, 357 U.S. 493, 500, 78 S.Ct. 1253, 2 L.Ed.2d 1514; Worthington v. United States, 166 F.2d 557, 566, C.A.6; Taglavore v. United States, 291 F.2d 262, 265, C.A.9. See also Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; Henderson v. United States, 12 F.2d 528, C.A.4; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 1635, 10 L.Ed.2d 726. All of the agents of the Narcotics Bureau who testified said that they went out to the defendant’s apartment for the purpose of arresting him for violating the narcotics laws. The real purpose of the agents must be determined from all of the facts and circumstances surrounding the arrest of the defendant and the search of his apartment. The court is not bound to accept the purpose as stated by the agents as controlling. The record as a whole supports the conclusion of the trial judge that the search was the principal reason for the agents going to the apartment of the defendant. The judge gave three reasons as a basis for his determination, viz., 1. That the defendant was on parole and if arrest was the only purpose of the agents, they could have had him arrested by" }, { "docid": "6319184", "title": "", "text": "did not hear them place the defendant under arrest. In sustaining the motion to suppress the evidence the trial judge found from the evidence that the search was not an incident of arrest, but that it was the principal reason for the officers going to the defendant’s apartment. The government claims that the agents had reasonable ground to believe that the defendant had committed or was committing, at the time of the entrance into his apartment, a violation of law relating to narcotic drugs and that they were empowered to make an arrest without a warrant. Section 7607(2), Title 26, U.S.C. The government claims that it logically follows that if the arrest of the defendant were valid, the search of the premises was incidental to the arrest and also valid. It is well established that a valid search of premises under control of an arrested person may be made as an incident of a valid arrest. Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145; Harris v. United States, 331 U.S. 145, 151, 67 S.Ct. 1098, 91 L.Ed. 1399; United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; Wilson v. Schnet-tler, 365 U.S. 381, 383, 81 S.Ct. 632, 5 L.Ed.2d 620. An arrest may not be used as a pretext or subterfuge for making a search of premises without a search warrant where ordinarily one would be required under the Fourth Amendment. If, in fact, the primary purpose of forcibly entering a person’s home is to search for evidence with which to convict him of crime, the evidence so obtained is not admissible in court. United States v. Lefkowitz, 285 U.S. 452, 467, 52 S.Ct. 420, 76 L.Ed. 877; Harris v. United States, 331 U.S. 145, 153, 67 S.Ct. 1098, 91 L.Ed. 1399; Abel v. United States, 362 U.S. 217, 225-26, 80 S.Ct. 683, 4 L.Ed.2d 668; Jones v. United States, 357 U.S. 493, 500, 78 S.Ct. 1253, 2 L.Ed.2d 1514; Worthington v. United States, 166 F.2d 557, 566, C.A.6; Taglavore v. United States, 291 F.2d 262, 265, C.A.9. See also" }, { "docid": "22965102", "title": "", "text": "by appellants. This contention is unsound. We know of no clause in the warrant issued extending the authority granted therein in the event of unforeseen circumstances, and it is well settled that search warrants must be strictly construed. The authority to search is limited to the place described in the warrant and does not include additional or different places. Appellants contend that, under the authority of McKnight v. United States, 1950, 87 U.S.App.D.C. 151, 183 F.2d 977, the police officers can not justify a search of 1108 as incident to a lawful arrest under the arrest warrants. Under the view we take of this case, it is unneees-sary for us to decide the applicability of McKnight to these facts. The officers left premises 1106 and entered premises 1108 at the time they opened and passed through the door in the partition separating the porches of the two houses. We need not consider whether the arrest warrants, together with a proper announcement, would have justified the officers in breaking and entering 1108. Breaking and entering without an announcement was clearly illegal, and the improper entry renders the subsequent search invalid. A long line of decisions of the Supreme Court and of this court on search and seizure emphasize the individual’s right to privacy in his home. Surely that right requires police officers who seek to invade that privacy at least to knock and announce themselves before barging in. See Miller v. United States, 1957, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332; Gatewood v. United States, 1953, 93 U.S.App.D.C. 226, 209 F.2d 789; cf. Ellison v. United States, 1953, 93 U.S.App.D.C. 1, 206 F.2d 476. The embarrassing consequences which could easily flow from unannounced intrusions are numerous. See Mr. Justice Jackson’s concurring opinion in McDonald v. United States, 1948, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153. Nor need we here decide whether a search of 1108 without either a search warrant or an arrest warrant might have been so made as to be “reasonable” under United States v. Rabinowitz, 1950, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed." }, { "docid": "6319191", "title": "", "text": "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. BOYD, District Judge (dissenting). I must respectfully dissent. The majority opinion invokes as controlling in this ease the principle that an arrest may be neither pretext nor subterfuge for a search without a warrant. With this legal principle in mind the instant case is quite different on its facts from any of the eases cited for the principle by the majority. Most of the cited cases were featured by one of four characteristics. There was either a general exploratory search as evidenced by ruthless and indiscriminate seizure of unoffending items, United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 and Go-Bart Importing Company v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; or an arrest for one offense with a search for evidence of another, Abel v. United States, 362 U.S. 217, 80 S.Ct. 683; 4 L.Ed.2d 668, and Taglavore v. United States, 291 F.2d 262 (C.A.9); or an arrest without probable cause, Worthington v. United States, 166 F.2d 557 (C.A.6); or a search preceding the arrest, Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 28 L.Ed.2d 154. None of these situations is here presented. The two remaining cases cited by the majority are Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, and Henderson v. United States, 12 F.2d 528 (C.A.4). In the Harris case the principle was recognized, but the search in that case was found to be a valid search, specific in nature and incidental to a lawful arrest. I so view the search in this case. The Court, in the Henderson case, finding the arrest therein a mere pretext, relied to some extent upon the failure of the officers to procure an arrest warrant although there was ample time for such procurement. My brethren do not seriously question the presence of probable cause for the within arrest. It also appears to be by" }, { "docid": "8054145", "title": "", "text": "rely principally on United States v. Merritt, 293 F.2d 742 (3rd Cir. 1961), wherein entry under authority of a validly issued federal search warrant was held unlawful because not served in the daytime and an attempt to validate the search and seizure as incident to an arrest based on the officers’ post-entry observation of defendant committing a felony in their presence failed. The Court believes that Merritt is distinguishable from this proceeding on the facts, and that it is not authority for a proposition of law different from that which the Court deems controlling here — the intent of officers to rely on invalid warrants does not defeat the right of the Government to demonstrate that no warrant was necessary in order to make the arrest and the resulting search and seizure. See United States v. Rabinowitz, 339 U.S. 56, 60, 70 S.Ct. 430, 94 L. Ed. 653 (1950) (alternative holding); Stallings v. Splain, 253 U.S. 339, 40 S.Ct. 537, 64 L.Ed. 940 (1920); DiBella v. United States, 284 F.2d 897 (2d Cir. 1960) , vacated, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962); Williams v. United States, 273 F.2d 781 (9th Cir. 1959), cert. denied, 362 U.S. 951, 80 S.Ct. 862, 4 L.Ed.2d 868 (1960); United States v. Russian, 192 F.Supp. 183 (D.Conn. 1961) ; Compare Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L. Ed.2d 1503 (1958). Nowhere in the Merritt opinion is there any statement or suggestion that if entry was under an invalid warrant, an arrest which could legally be made without a warrant is rendered invalid solely because an attempt was made to enter under a warrant which was later declared invalid. The Government, in Merritt, apparently attempted to justify the search on the theory, inter alia, that the officers entered with a view to interrogation and investigation and that an arrest did not oc cur until after they entered the premises and saw defendant therein committing a felony in their presence. The Government did not" }, { "docid": "13946791", "title": "", "text": "cause for the search, he must place that evidence before a judicial officer who will make that judgment. The security of property is not left to the judgment of a police officer “engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, supra Note 1, 833 U.S. at 14, 68 S.Ct. at 369. With reference to the protection of persons from illegal arrest and subsequent search pursuant thereto, not only of their persons but of their immediate surroundings, it has been held that state law determines the validity of arrests without warrant. Johnson v. United States, supra Note 1, 333 U.S. at 15 n. 5, 68 S.Ct. 367; United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948). Most states follow the old common law principle that a police officer may make a valid arrest without a warrant for a misdemeanor or a felony committed in his presence and for a felony not committed in his presence where he has probable cause to believe that a felony has been committed and that the person arrested committed it. Currently there appears to be a certain amount of uneasiness with this dichotomy between search and arrest. The Supreme Court, in Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), held that the issuance of an arrest warrant under Rules 3 and 4, Fed.R.Crim.P., must be based on the judgment of “a neutral and detached magistrate” who, in determining probable cause, “should not accept without question the complainant’s mere conclusion that the person whose arrest is sought has committed a crime.” In Jones v. United States, supra Note 1, 357 U.S. at 499-500, 78 S.Ct. at 1257, where the Government sought to justify the entry of a home to arrest without an arrest warrant, the Supreme Court stated: “These contentions, if open to the Government here, would confront us with a grave constitutional question, namely, whether the forceful nighttime entry into a dwelling to arrest a person reasonably believed within, upon probable cause that he had committed a" }, { "docid": "5484393", "title": "", "text": "•diminished by what another may have colorably suppressed.” Although the Elkins case dealt with the use of illegally obtained evidence in a Federal proceeding, where the evidence had been acquired by the actions of a State officer, the decision in Mapp seems to have abolished whatever significance such a distinction might have. It is clear that mere probable cause for belief that certain articles subject to seizure are in a dwelling cannot, of itself, justify a search without a warrant (Chapman v. United States, 365 U.S. 610, 613, 81 S.Ct. 776, 5 L.Ed.2d 828; Jones v. United States, 357 U.S. 493, 497, 78 S.Ct. 1253, 2 L.Ed.2d 1514; Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145; and Catalanotte v. United States, 6 Cir., 208 F.2d 264). Since the officers in this situation did not have a warrant, the only possible basis for their search of the premises at 309 must have been as an incident of the arrest of Anniece and petitioner. Nothing which would cause this case to come within the “exceptional circumstances” rule of Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 is made to appear. The language of Elkins, supra, attains decisive significance in the instant situation, in view of the present status of the Federal law of search and seizure. That law requires (with an exception, not here material, involving mov- ing vehicles; See: Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629; and Busby v. United States, 9 Cir., 296 F.2d 328) that an arrest be made prior to any search of a defendant or of the area under his possession or control, in order that such search be considered as incident to the arrest (Mosco v. United States, 9 Cir., 301 F.2d 180; United States v. Paroutian, 2 Cir., 299 F.2d 486; Lee v. United States, 98 U.S.App.D.C. 97, 232 F.2d 354; Walker v. United States, 5 Cir., 225 F.2d 447; Papani v. United States, 9 Cir., 84 F.2d 160; United States v. Royster, D.C., 204 F.Supp. 760; United States" }, { "docid": "4319706", "title": "", "text": "supra, 357 U.S. at 488, 78 S.Ct. at 1251, 2 L.Ed.2d 1503, left it open for the Government at a new trial to “seek to justify petitioner’s arrest without relying on the warrant.” Appellant’s reliance on McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948), and Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), is misplaced. In McDonald the Court invalidated the arrest, not because the police lacked a warrant but because of the improper manner in which they had acquired probable cause. Similarly, in Johnson, probable cause for the arrest was obtained only after an unauthorized invasion of the suspect’s home; one can infer that, had it been otherwise, the arrest and incidental search would have been upheld. The Courts of Appeals that have been confronted with the contention under discussion, including our own, have declined to sustain it in circumstances like those here. Smith v. United States, 254 F.2d 751, 755-758 (D.C.Cir.), cert. denied, 357 U.S. 937, 78 S.Ct. 1388, 2 L.Ed.2d 1552 (1958); Dailey v. United States, 261 F.2d 870, 872 (5 Cir. 1958), cert. denied, 359 U.S. 969, 79 S.Ct. 881, 3 L.Ed.2d 836 (1959); Di Bella v. United States, 284 F.2d 897 (2 Cir. 1960), vacated on other grounds, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962); United States v. White, 342 F.2d 379 (4 Cir. 1965). See also Barrett, supra, 1960 Supreme Court Review at 50; Leagre, The Fourth Amendment and the Law of Arrest, 54 J.Crim.L., C. & P.S. 393, 404-05 (1963); LaFave, Arrest 15-16 (1965). What the Supreme Court has characterized as “a grave constitutional question” with respect to an arrest without warrant where there was opportunity to secure one, Jones v. United States, 357 U.S. 493, 499-500, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958), related not to an arrest on a public highway but to one accomplished by “forceful nighttime entry into a dwelling * * * ”; such a case, unlike ours, comes close to what the Court has characterized as the “very core” of the" } ]

[ { "docid": "23190181", "title": "", "text": "the Hearing Examiner issued a decision affirming the denial of the appellant’s application. A request for review was granted by the Appeals Council which subsequently remanded the case to the Hearing Examiner for a supplemental hearing. Another hearing was conducted on December 13, 1966 at which the evidence consisted of the transcript from the previous hearing, new testimony by the appellant, testimony by two employment experts, and various reports by medical and social experts. After the supplemental hearing, the Hearing Examiner again affirmed the denial of benefits and the Appeals Council upheld the Hearing Examiner’s decision. The sole question before this court is whether there is substantial evidence to support the Secretary’s determination that the appellant is not disabled. For purposes of this case, disability is defined as follows: The term “disability” means 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 to be of long-continued and indefinite duration. An individual shall not be considered to be under a disability unless he furnishes such proof of the existence thereof as may be required. 42 U.S.C. § 423(c) (2) (1964). The appellant contended that his disability stemmed from a heart condition and a sprained sacroiliac. During the administrative hearings, the appellant’s personal physician and an owner of an employment agency testified in support of the appellant’s claim; two purportedly objective experts — an internist and a vocational consultant — testified in opposition to the appellant’s claim. Additionally, the record contains the reports of various specialists to whom the Hearing Examiner had referred the appellant for examination. If we were making the original determination in this case, it is entirely likely that we would have decided in favor of the appellant. However, on appeal our function is not to re-weigh the evidence but to determine whether there is substantial evidence to support the Secretary’s decision. 42 U.S.C. § 405(g) (1964); Celebrezze v. Zimmerman, 339 F.2d 496, 497-498 (5 Cir. 1964) (per curiam); Celebrezze v. O’Brient, 323 F. 2d 989, 990 (5th Cir. 1963). There" } ]

[ { "docid": "479164", "title": "", "text": "therefore dismissed Acierno’s complaint. The precise issue on appeal is whether the limitations period set forth at § 405(c)(1)(B), (e)(4) may be equitably tolled. While Acierno’s personal circumstances are sympathetic and the result we reach today is harsh, the history, text, and structure of § 405(c) compel us to hold that equitable tolling does not apply to that provision. Only Congress can amend the statute to provide otherwise. BACKGROUND I. Social Security Eligibility An individual’s eligibility for social security disability benefits depends on how much he has worked and earned in the 10 years prior to applying for benefits. Those whose work and income history qualify them for coverage achieve “insured” status under the Social Security Act. 42 U.S.C. § 423(a)(1)(A), (c)(1). As is relevant here, to achieve such status, one must accumulate 20 or more calendar “quarters of coverage” within the 40 calendar quarters prior to filing for benefits. 42 U.S.C. § 423(c)(1)(B)(i). This is known as the “20/40 Rule.” A “quarter of coverage” is a period of three months during which one earns a certain amount of money in either wages or self-employment income. 42 U.S.C. § 413(a). In order to keep track of who qualifies for coverage, the Commissioner of Social Security must maintain records of the wages and self-employment income earned by each individual assigned a social security number. 42 U.S.C. § 405(c)(2)(A). In the case of wage earners, the Commissioner typically obtains this information from W-2 forms filed by the employer. See Yoder v. Harris, 650 F.2d 1170, 1174 n. 4 (10th Cir.1981). Regarding the self-employed, the Commissioner gleans this information from tax returns. Id. at 1173. The absence of any entry in the Commissioner’s records is evidence that an individual earned no income for the period in question, and therefore did not earn any quarters of coverage. 42 U.S.C. § 405(c)(3). If the Commissioner’s records are incorrect, a person has a limited time within which to correct them. Generally, a person must act to correct errors within three years, three months, and 15 days following the end of the calendar year to which the" }, { "docid": "16388422", "title": "", "text": "applied for social security disability insurance benefits, alleging he became disabled on May 22, 1973 because of his heart condition. The Bureau of Disability Insurance of the Social Security Administration, Department of Health, Education, and Welfare found that Chance had only seven quarters of coverage - during the relevant forty-quarter period and denied his application. Chance requested reconsideration and the Bureau affirmed its decision. On August 27, 1974, a de novo hearing was held before an administrative law judge of the Bureau of Hearings and Appeals, who affirmed the decision of the Bureau of Disability Insurance after finding that Chance had only eight quarters of coverage, and, in any event, was not disabled within the meaning of the Social Security Act. The Appeals Council affirmed the decision of the administrative law judge on June 25, 1975, the administrative law judge’s decision became the final decision of the Secretary of Health, Education, and Welfare, and Chance sought review in the district court, which reversed the Secretary’s decision. The Secretary now appeals. Sections 216(i)(3)(B)(i) and 223(c)(l)(B)(i) of the Social Security Act, 42 U.S.C. §§ 416(i)(3)(B)(i) and 423(c)(l)(B)(i), provide that a claimant, in order to be. insured for disability insurance benefits, must have at least twenty quarters of coverage during the forty-quarter period immediately preceding disability. “Quarter of coverage” is defined in Section 213(a)(2) of the Act, 42 U.S.C. § 413(a)(2), as a calendar quarter in which a claimant earned $50 or more in wages or $100 or more in self-employment income. Section 217(a)(1) of the Act. 42 U.S.C. § 417(a)(1), provides further in pertinent part: For purposes of determining entitlement to and the amount of any monthly benefit for any month after August 1950, or entitlement to and the amount of any lump-sum death payment in case of a death after such month, payable under this subchapter on the basis of the wages and self-employment income of any World War II veteran, and for purposes of section 416(i)(3) of this title, such veteran shall be deemed to have been paid wages (in addition to the wages, if any, actually paid to him)" }, { "docid": "22352972", "title": "", "text": "coverage, the AU ruled that she was a fully insured individual. With respect to the “currently insured” or special disability insured status requirements, the AU determined that Brainard, who claims disability as a younger individual (i.e., before age 31), must have earned quarters of credit in at least half of the calendar quarters from the calendar quarter after she turned 21 (second quarter of 1960) until the quarter (before age 31) in whieh she claims disability (fourth quarter of 1969). See 42 U.S.C. § 423(c)(l)(B)(ii) (1982); 20 C.F.R. § 404.130(c) (1988). Thus, since the period in Brainard’s case represents thirty-eight quarters, the AU concluded that Brainard would need nineteen quarters of coverage in order to be currently insured. SSA earnings records presented to the AU indicate that Brainard was credited with sixteen calender quarters of credit. While Brainard acknowledged that the SSA records correctly reflected that she had earned credits in sixteen quarters, she claims that she should have been credited with five additional quarters because she worked during five quarters which were not reflected in the SSA records. The AU rejected Brainard’s claim relating to the additional five quarters, in part, because SSA regulations provide that the relevant date for the purpose of receiving quarters of credit is the quarter in which an employee was paid earnings rather than the quarter in which the claimant actually worked for those earnings. See e.g., 20 C.F.R. §§ 404.140(b), 404.141(a) (1988). Since Brainard has only sixteen documented quarters of coverage, the AU ruled that Brainard does not meet the additional special disability insured status requirements and that she is not entitled to DIB. Although the AU concluded that the SSA records were accurate, he kept Brai-nard’s case open to allow her to supply documentary evidence to support her claim concerning the additional quarters. While Brainard’s attorney at the hearing stated that she would attempt to provide written verification for the additional employment dates, Brainard never provided any additional documentary evidence. II. Judicial review of the Secretary’s decision is limited to determining whether the Secretary’s findings are supported by substantial evidence and whether" }, { "docid": "16388423", "title": "", "text": "the Social Security Act, 42 U.S.C. §§ 416(i)(3)(B)(i) and 423(c)(l)(B)(i), provide that a claimant, in order to be. insured for disability insurance benefits, must have at least twenty quarters of coverage during the forty-quarter period immediately preceding disability. “Quarter of coverage” is defined in Section 213(a)(2) of the Act, 42 U.S.C. § 413(a)(2), as a calendar quarter in which a claimant earned $50 or more in wages or $100 or more in self-employment income. Section 217(a)(1) of the Act. 42 U.S.C. § 417(a)(1), provides further in pertinent part: For purposes of determining entitlement to and the amount of any monthly benefit for any month after August 1950, or entitlement to and the amount of any lump-sum death payment in case of a death after such month, payable under this subchapter on the basis of the wages and self-employment income of any World War II veteran, and for purposes of section 416(i)(3) of this title, such veteran shall be deemed to have been paid wages (in addition to the wages, if any, actually paid to him) of $160 in each month during any part of which he served in the active military or naval service of the United States during World War II. Thus an American serviceman’s earnings while serving in World War II may count toward satisfying the Social Security Act’s twenty-quarter coverage requirement. The district court, in reversing the Secretary’s decision, found in part that Chance had compiled twelve quarters of coverage from his military service during 1941-1944 in World War II, which, when coupled with the eight other quarters of coverage found by the administrative law judge, gave him the twenty quarters necessary for insured status at the time he incurred his disability. Chance did not earn the quarters credited to him as a result of his military service during the forty-quarter period immediately preceding his disability, however. In effect, then, the lower court found that military service quarters of coverage are peripatetic in nature, and that a claimant may cast them forward to apply to a later forty-quarter period. In providing quarters of coverage for World War" }, { "docid": "11992244", "title": "", "text": "expert must be called to testify that jobs requiring only the activities which the claimant can perform exist in the national economy. . Ferguson at 248. III. The case is remanded to the Secretary for development of findings on the extent of the environmental limitation, if any, under which Thomas would labor. If such a limitation is found, it is incumbent on the Secretary to show, through the testimony of a vocational expert, that there exists in the national economy substantial gainful employment which Thomas is capable of performing in light of all the factors contributing to her disability. REVERSED AND REMANDED. . Thomas also applied for a period of disability and disability insurance benefits under §§ 216(i) and 223 of Title II of the Social Security Act, 42 U.S.C. §§ 416(i) & 423. Title II disability insurance benefits are designed to provide financial assistance to those whose employment is interrupted or prematurely terminated by incapacitating illness or injury. Mathews v. DeCastro, 429 U.S. 181, 97 S.Ct. 431, 434 n.6, 50 L.Ed.2d 389 (1976) (citations omitted). As a wage insurance program, its benefits are limited to claimants whose disabilities occurred while they were in “insured status.” Claimants hold insured status over that period in which they have accrued 20 quarters of social security coverage, as defined by § 213(a)(2), 42 U.S.C. § 413(a)(2), out of the last 40 quarters. Sections 213(i)(3) and 223(c)(1), 42 U.S.C. §§ 416(i)(3) & 423(c)(1). Disabilities occurring after insured status has lapsed do not provide a basis for payment of disability insurance benefits under Title II. Demandre v. Califano, 591 F.2d 1088 (5th Cir.), cert. denied, 444 U.S. 952, 100 S.Ct. 428, 62 L.Ed.2d 323 (1979). The ALJ found, on examination of Thomas’ employment records, that she last met the insured status requirement on December 31, 1978. Because she claimed that her disability began on July 12, 1979, after her insured status had lapsed, the ALJ denied her claim for a period of disability and disability insurance benefits. Thomas did not appeal this determination. Thomas’ ineligibility for benefits under Title II does not affect her eligibility" }, { "docid": "16308505", "title": "", "text": "HARRY E. WATKINS, District Judge. This is an action under 42 U.S.C.A. § 405(g) of the Social Security Act to review a final decision of the Secretary of Health, Education and Welfare. Plaintiff seeks to establish a period of disability under 42 U.S.C.A. § 416 (i) and a right to disability insurance benefits under 42 U.S.C.A. § 423. The final decision of the Secretary was that plaintiff had failed to carry her burden of proof in establishing these elements, and the jurisdiction of this court is limited to a determination of whether that decision was based on substantial evidence. 42 U.S.C.A. § 405(g). The court is precluded from having a hearing de novo. See Carpenter v. Flemming, D.C.N.D.W. Va., 178 F.Supp. 791. The Act, 42 U.S.C.A. § 416 (i) provides for eliminating from a person’s earning record the period during which he was under a “disability” in computing his average monthly wage upon which the amount of his benefit is based. A discussion of the elements of this statutory disability is contained in Pruitt v. Flemming, S.D.W.Va., 182 F.Supp. 159. For an individual to be eligible for the establishment of a period of disability and for disability insurance benefits, the Act requires him (besides being under a “disability” as defined) to have met the spe cial “insured status” contained therein. With respect to this plaintiff, the special insured status requirement was that she must have had a continuous “disability” (for not less than six continuous calendar months but still continuing indefinitely at the time of the filing of her application) which began when she had 20 quarters of coverage (as defined in 42 U.S.C.A. § 413) in the 40 quarter period, ending with the first quarter of disability. Plaintiff last satisfied this quarters of coverage requirement in the quarter ending September 30, 1958. Plaintiff filed an application for disability insurance benefits on October 7, 1958, and an application to establish a period of disability on October 17, 1958, alleging that she became unable to work because of rheumatism on April 22, 1957. The Bureau of Old-Age and Survivors Insurance denied" }, { "docid": "23083741", "title": "", "text": "physical activities that the jobs available to him require. . It is not necessary to have a degree in vocational counseling to observe that virtually any job, except one designed for a handicapped person, is likely to require occasional bending The absence of a finding on Epps’ range of motion and the movement requirements of his former job deprives the Secretary’s decision of critical evidentiary support and, like the other lacunae in the record of this case, requires further investigation by the Secretary. In remanding this case to the Secretary, we intimate no opinion as to whether Epps can ultimately establish that he is disabled within the meaning of the Social Security Act. We have determined only that certain crucial issues were not adequately considered and that therefore the decision denying Epps’ disability eligibility was not supported by substantial evidence. The purposes of the Social Security Act will best be served by further consideration of Epps’ claims upon a more fully developed record. REVERSED AND REMANDED. . He receives a Veteran’s Administration full disability pension and has waived his military pension. . A claimant for disability insurance benefits must establish that he or she worked at least “one quarter of coverage” (/. e., that he worked at least one quarter of a calendar year and earned a minimum of $250 in that quarter or earned a minimum of $10,000 in the year) for each year from 1951 through the year of disability if, like Epps, he or she was born before 1930. 42 U.S.C. § 423(c)(1)(A), § 414(a). He or she must also show that 20 quarters of coverage fell within the 40-quarter period immediately preceding the disability. See 42 U.S.C. § 423(c)(1)(B). The claimant must show that he or she has not yet attained the age of 65. . The SSA operates under an “open-file” rule whereby a claimant can submit additional evidence at every stage of the administrative review process to support a favorable determination of his claim. See 20 C.F.R. §§ 404.901, 404.964 (1979). . Substantial evidence is “more than a mere scintilla. It means such relevant" }, { "docid": "9732269", "title": "", "text": "IRVING R. KAUFMAN, Circuit Judge: The ease before us presents a somewhat ironic situation. The failure to employ available procedures, and the resulting non-enforcement of administrative subpoenas, appears to have stemmed not from absence of sympathy to the claimant’s position, but from a lack of understanding how to proceed. As the facts indicate, the error of omission led to other procedural infirmities, and ultimately to a deprivation of due process. Accordingly, we reverse and remand. 535 F.Supp. 643. I We set out in some detail the intricate procedural and factual matrix which generated this appeal. Margaret Treadwell, an illiterate migrant farmworker representing herself, first applied for disability insurance benefits in December, 1973. On February 22, 1974, her application was denied, the Director of HEW’s Division of Initial Claims having determined Treadwell had not demonstrated “insured status,” pursuant to the Social Security Act, 42 U.S.C. § 423(c)(l)(B)(i). That provision requires a claimant to establish he or she earned twenty calendar “quarters of coverage” during the forty quarter period ending with the quarter in which the disability is alleged to have arisen. Because the Administration’s official earnings record evidenced credit for only twelve quarters of coverage during the relevant period, Treadwell had not proved her eligibility for benefits. See id. § 405(c)(4)(B) (absence of entry in Secretary’s records as to wages alleged to have been paid considered presumptive evidence of nonpayment). In response to this initial denial, Tread-well submitted statements to supplement her earnings record and to show she had been employed for a sufficient number of quarters to qualify for disability insurance. She named various employers, in New York and Florida, for whom she claimed to have worked, and who might have failed to report her earnings to the Social Security Administration. Treating her statements as an implied request for reconsideration, the Administration attempted to communicate with the employers she had named. Of those who replied — and several never did— the majority failed to substantiate Tread-well’s claim of employment. In February, 1977, on reconsideration, the claim was again denied. In December, 1977, Treadwell, now represented by counsel, was granted a" }, { "docid": "23235019", "title": "", "text": "benefits Every individual who— (1) is a fully insured individual (as defined in section 414(a) of this title), (2) has attained age 62, and (3) has filed application for old-age insurance benefits or was entitled to disability insurance benefits for the month preceding the month in which he attained retirement age (as defined in section 416(/) of this title), shall be entitled to an old-age insurance benefit for each month, beginning with ... the first month in which such individual meets the criteria specified ... and ending with the month preceding the month in which he dies. 42 U.S.C. § 402(a) (Supp. V 1987). . Section 214(a) of the Social Security Act, 42 U.S.C. § 414(a), defines “fully insured individual” in pertinent part as follows: (a) \"Fully insured individual” defined The term \"fully insured individual” means any individual who had not less than— (1) one quarter of coverage (whenever acquired) for each calendar year elapsing after 1950 (or, if later, the year in which he attained age 21) and before the year in which he died or (if earlier) the year in which he attained age 62, except that in no case shall an individual be a fully insured individual unless he has at least 6 quarters of coverage; or (2) 40 quarters of coverage; .... 42 U.S.C. § 414(a) (1982). The terms \"quarter,” \"calendar quarter\" and \"quarter of coverage\" are defined in section 213(a) of the Social Security Act, 42 U.S.C. § 413(a), in relevant part as follows: (1) The term \"quarter\", and the term \"calendar quarter”, mean a period of three calendar months ending on March 31, June 30, September 30, or December 31. (2)(A) The term “quarter of coverage” means— (i) for calendar years before 1978, and subject to the provisions of subparagraph (B), a quarter in which an individual has been paid $50 or more in wages (except wages for agricultural labor paid after 1954) or for which he has been credited (as determined under section 412 of this title) with $100 or more of self-employment income; .... 42 U.S.C. § 413(a)(1), (a)(2)(A) (1982 & Supp." }, { "docid": "11689282", "title": "", "text": "Opinion and Judgment DALTON, Chief Judge. From an adverse decision of the Secretary of Health Education and Welfare rendered July 17, 1967, plaintiff has appealed to this court. This final decision on July 17, 1967 was a denial of plaintiff’s request for review of a decision rendered by a hearing examiner on May 19, 1967. The plaintiff filed an application for disability insurance benefits on August 22, 1961, and said application was denied because plaintiff did not meet the insured status requirements. Following this denial, plaintiff started to file self-employment tax returns as a farmer. As a result of the quarters of coverage earned as a self-employed farmer, plaintiff met the insured status requirements for disability for the first time on April 1, 1965. On August 29, 1966 plaintiff filed an application for disability benefits alleging that he has been unable to work since April 28, 1965. In his application plaintiff alleged he was unable to work due to “lung condition, stomach ulcer, arthritis”. Upon consideration of all the evidence, the Secretary concluded that plaintiff had failed to meet his burden of proof in establishing disability, i. e. * * * 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 has lasted or can be expected to last for a continuous period of not less than 12 months. Sections 216(i) and 223 of the Social Security Act, 42 U.S.C.A. 416(i) and 423. The only issue before this court is whether the aforementioned final decision of the Secretary is supported by substantial evidence. Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966). The medical evidence before the Secretary consisted of reports from three general practitioners. Dr. H. K. Butter-more examined the plaintiff in 1961 and diagnosed arthritis myositis, pneumoco niosis and gastritis. Dr. J. B. Johnson examined the plaintiff once in 1965, and thre.e times in 1966. Dr. Johnson conducted tests and X rayed the plaintiff, and the ultimate diagnosis was an essentially normal stomach, lungs, intestinal tract, digestive system and slight osteoarthritis" }, { "docid": "22979359", "title": "", "text": "of benefits.” Havas v. Bowen, 804 F.2d 783, 785 (2d Cir.1986); see 42 U.S.C. § 405(g). “[W]e may only set aside a determination which is based upon legal error or not supported by substantial evidence.” Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982) (per curiam). Substantial evidence “ ‘means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)); see also Havas, 804 F.2d at 785. B. Issues Relevant to Amone’s Entitlement to Disability Insurance Benefits To be eligible for disability insurance benefits, an applicant must be “insured for disability insurance benefits.” 42 U.S.C. §§ 423(a)(1)(A), 423(c)(1); see also 20 C.F.R. §§ 404.130, 404.315(a) (1988). An applicant’s “insured status” is generally dependent upon a ratio of accumulated “quarters of coverage” to total quarters. 42 U.S.C. § 423(c)(1)(B); 20 C.F.R. §§ 404.101(a), 404.130-404.133 (1988). “Quarters of coverage” include quarters in which the applicant earned certain amounts of wages or self-employment income. 20 C.F.R. §§ 404.101(b), 404.140-404.146 (1988). Ar-none, who claims to have become disabled after age 31, would be insured in a particular quarter only if he had accumulated twenty “quarters of coverage” over the course of a forty quarter period ending with that particular quarter. See 20 C.F.R. § 404.130(b). It is uncontested that Arnone last met the 20/40 earnings requirement maintaining his “insured status” on March 31,1977. Despite his claim to have suffered his disability over three years earlier, Arnone failed to apply for benefits while he satisfied the earnings requirement. He did not work at any time after March 31,1977, and therefore he did not accumulate additional “quarters of coverage” and thereby satisfy the 20/40 requirement. Therefore, ordinarily Arnone would be ineligible for disability insurance benefits after March 31, 1977. Despite his failure to satisfy the earnings requirement at the time of his January 19, 1981 application, Arnone might nevertheless have been “insured for disability,” 20 C.F.R. §" }, { "docid": "23345358", "title": "", "text": "Gordon in his report to the Appeals Council, the finding of only mild arthritic changes just a few months prior to the date upon which claimant alleges she became totally disabled, combined with the absence of any visits to Dr. Harris during this period, refutes a finding of severe impairment on or before December 31, 1975. Accordingly, because the opinion of the reviewing physician is supported by the evidence, the district court was entitled to accept that opinion and reject the conclusory opinion of Dr. Harris, one of claimant’s treating physicians. Thus, finding substantial evidence supporting the decision of the Secretary denying disability insurance benefits to Alice Oldham, we AFFIRM the decision below. AFFIRMED. . An individual is entitled to the establishment of a period of disability and to disability insurance benefits in any month only if he or she enjoys fully insured status as defined in Section 216(i)(3) and Section 223(c), and has had not less than 20 quarters of coverage during the 40-quarter period ending with the quarter in which disability occurs. 42 U.S.C. § 416(i)(3); 42 U.S.C. § 423(c). An individual is considered “fully insured” for purposes of establishing a period of disability and obtaining disability benefits when he or she has not less than one quarter of coverage (whenever acquired) for each calendar year elapsing after 1950 (or, if later, the year in which he or she attained age 21) up to the year in which disability is established. 42 U.S.C. § 414(a); 42 U.S.C. § 416(i)(3); 42 U.S.C. § 423(c). Section 213(a) defines “quarter” as a period of three calendar months ending March 31, June 30, September 30, or December 31; and defines “quarter of coverage” as any quarter in which . the individual earns $50 or more in wages. 42 U.S.C. § 413(a). . Although the record establishes that claimant continued to meet the “20/40” requirement, see note 1, supra, until recently, she ceased to occupy the status of a “fully insured individual” at the conclusion of the last quarter in 1975. In his decision entered February 24, 1977, the ALJ found that Mrs." }, { "docid": "21938534", "title": "", "text": "trative law judge concluded that the plaintiff was not entitled to old-age insurance benefits because she did not have the 21 “quarters of coverage needed by her to qualify as a “fully insured individual.” This conclusion was based on the finding that the plaintiff’s farm income for the years 1968, 1969, and 1970 was not derived from a “trade or business” and, therefore, was not “self-employment income.” On April 3, 1973, the Appeals Council affirmed the administrative law judge’s decision. This affirmance constitutes the final decision of the Secretary for purposes of review under 42 U.S.C. § 405(g) (1970). To qualify for old-age insurance benefits under 42 U.S.C. § 402(a) (1970), an individual must be a “fully insured individual” within the meaning of 42 U.S.C. § 414(a) (1970). Subsection 414(a) provides: The term “fully insured individual” means any individual who had not less than— (1) one quarter of coverage (whenever acquired) for each calendar year elapsing after 1950 (or, if later, the year in which he attained age 21) and before— (A) in the ease of a woman, the year in which she died or (if earlier) the year in which she attained age 62. . See also 20 C.F.R. § 404.19(a)(1) (i) (1973). Since the plaintiff attained age 62 in 1972, she needs 21 “quarters of coverage,” i. e. one quarter for each of the years 1950 through 1971. The term “quarter” means a period of three calendar months ending on March 31, June 30, September 30, or December 31. 42 U.S.C. § 413(a)(1) (1970). The term “quarter of coverage” means a quarter in which the individual has been paid $50 or more in wages or for which he has been credited under 42 U.S.C. § 412 (1970) with $100 or more of “self-employment income.” 42 U.S.C. § 413(a)(2) (Supp. I, 1971); 20 C.F.R. § 404.103 (1973). The term “self-employment income” means the “net earnings from self-employment” derived by an individual during any taxable year after 1950 if the net earnings are at least $400. 42 U.S. C. § 411(b) (Supp. I, 1971); 20 C.F.R. § 404.1068 (1973). The" }, { "docid": "9583284", "title": "", "text": "PER CURIAM: We have concluded on the merits that oral argument is unnecessary in this case. Accordingly, we have directed the Clerk to place the case on the Summary Calendar and to notify the parties of this fact in writing. See Rule 18 of the Rules of this Court and Murphy v. Houma Well Service, 5 Cir. 1969, 409 F.2d 804. Sections 213(a) (2) and 223(c) (B) (1) (i) of the Social Security Act provide that an employee is eligible to receive disability insurance benefits if he received $50 or more a quarter in twenty of the forty quarters preceding the disability. O’Brien brings this action as the executor of the estate of William A. Harvard, who was allegedly disabled by a back injury in November 1957. The Secretary of Health, Education, and Welfare denied the executor’s claim after a hearing examiner had found that Harvard did not meet the Act’s earnings requirements, and after the Appeals Councii had declined to review the examiner’s decision. The district court sustained the denial by the Secretary. The sole issue on appeal is whether the evidence is sufficient to support the examiner’s finding that Harvard had not earned $50 a quarter in 20 of the 40 quarters up to and including the quarter in which his accident occurred. Section 205(e) (4) (B) of the Act provides that after the expiration of three years, three months, and fifteen days, the Secretary’s records of an individual’s wages shall be “presumptive evidence” of the amount of wages he received. In this case, the statutory limit has expired and the records of the Social Security Administration show that Harvard earned the required amount in only 16 quarters. O’Brien contends, however, that while the records of the Secretary are presumptively correct, they may be rebutted by contrary evidence, and that Harvard presented such evidence at the examiner’s hearing. His position is that the records fail to reflect substantial cash payments Harvard received from his employer, and these payments make him eligible under the Act. To be sure, Harvard did testify to such cash payments, and two fellow employees" }, { "docid": "21178507", "title": "", "text": "EDWARDS, Circuit Judge. Lee Roy Banks, claimant in this case, sought a period of disability and disability insurance benefits under the Social Security Act (42 U.S.C. §§ 416 (i) and 423). The Hearing Examiner, after hearing, concluded that these benefits should be denied because claimant was not disabled within the meaning of the Social Security Act, 42 U.S.C. §§ 416(i) (1) (A) and 423(c) (2). The Secretary of the Department of Health, Education and Welfare, through action of the Appeals Council, adopted the Hearing Examiner’s decision. The District Judge who heard claimant’s petition for review of this adverse decision found no substantial evidence to support the Trial Examiner’s finding. He thereupon reversed and remanded the case, directing that claimant be granted both a period of disability and disability insurance benefits. Unfortunately, the brief memorandum and order entered does not advise us on what grounds he reached either conclusion. See Celebrezze v. Zimmerman, 339 F.2d 496 (C.A.5, 1964). Disability insurance benefits are payments made to an individual who is insured under the Social Security Act when he becomes disabled within the meaning of the Act. A period of disability is, however, simply the freezing of an insured individual’s benefit status so that his retirement benefit rights are preserved, even though he does not do any more work in an employment covered by Social Security. Generally the requirements for both disability benefits and disability freeze are the same. But this is not true where, as here, an individual has achieved an insured status for disability purposes under railroad employment. This record clearly shows that Lee Roy Banks has held only two regular jobs in his lifetime — one with the L & N Railroad for 15 years and one with the L & H Coal Company for four and one-half years. Claimant’s railroad employment was not subject to Social Security coverage. 42 U.S.C. § 410(a) (9) As to claimant’s nonrailroad employment (which was covered by Social Security) coverage for twenty quarters is required for payment of disability insurance benefits. 42 U.S.C. § 416(i) (3) (B). It is conceded that without borrowing railroad" }, { "docid": "22451870", "title": "", "text": "OPINION OF THE COURT PER CURIAM. This is an appeal from a grant of summary judgment by the district court, Appellant’s Appendix 1(a), in favor of the Secretary of Health, Education and Welfare, appellee, which had the effect of upholding the denial of appellant’s claim for disability benefits. Appellant’s application for establishing a period of disability and for disabil ity insurance benefits under the Social Security Act was filed on January 4, 1964, claiming June 10, 1961, as the date of onset of disability. After the Social Security Administration of the Department of Health, Education and Welfare rejected the application in 1966, a hearing was held before a Hearing Examiner who disallowed the claim on April 14, 1967 (TR. 4-10). The Appeals Council declined review of the Examiner’s decision in September 1967 (TR. 1), and appellant then filed this suit in the court below in accordance with § 205(g) of the Social Security Act, 42 U.S.C. § 405 (g)- In order to be eligible for disability benefits, a claimant must meet the twin requirements of (1) disability within the meaning of the Act, and (2) the requisite coverage preceding the onset of disability. §§ 216 (i), 223, 42 U.S.C. §§ 416(i), 423. The latter requirement is twenty calendar quarters of coverage, i. e., five years, during the ten-year period ending with the quarter in which the claimant becomes disabled. Appellant did not have the required period of coverage with respect to the claimed June 10, 1961, date of onset of disability. According to appellee the last time appellant met the coverage requirement was December 31, 1959. (TR. 5, 66.) Of prime significance to the decision in this case is the fact that in two prior applications appellant had made for disability benefits, in which he had claimed 1958 and 1955 dates of disability, it had been determined that his condition was not disabling at any time from 1955 to December 31, 1959. (TR. 66.) These prior applications were rejected by the Chief of the Evaluation and Authorization Branch of the Social Security Administration in a letter dated November 23, 1964," }, { "docid": "23345359", "title": "", "text": "U.S.C. § 416(i)(3); 42 U.S.C. § 423(c). An individual is considered “fully insured” for purposes of establishing a period of disability and obtaining disability benefits when he or she has not less than one quarter of coverage (whenever acquired) for each calendar year elapsing after 1950 (or, if later, the year in which he or she attained age 21) up to the year in which disability is established. 42 U.S.C. § 414(a); 42 U.S.C. § 416(i)(3); 42 U.S.C. § 423(c). Section 213(a) defines “quarter” as a period of three calendar months ending March 31, June 30, September 30, or December 31; and defines “quarter of coverage” as any quarter in which . the individual earns $50 or more in wages. 42 U.S.C. § 413(a). . Although the record establishes that claimant continued to meet the “20/40” requirement, see note 1, supra, until recently, she ceased to occupy the status of a “fully insured individual” at the conclusion of the last quarter in 1975. In his decision entered February 24, 1977, the ALJ found that Mrs. Oldham had a total of 24 quarters of coverage at the time she terminated her employment in February 1975. Thus, under Section 214(a), read in conjunction with Sections 216(i)(3) and 223(c), her fully insured status ended on December 31, 1975, that is, following the elapse of 24 calendar years after 1950. . In a letter dated August 8, 1979, counsel for claimant expressed his opinion to the ALJ that no supplemental evidentiary proceedings were necessary. . Attempting to decipher the clinical notes compiled by the particular physicians involved herein has bestowed upon the Court a renewed admiration of pharmacists and others who, uncannily, are able to derive meaning from the etchings of the medical profession without great difficulty. . “The weight to be given such physician’s statement depends on the extent to which it is supported by specific and complete clinical findings and is consistent with other evidence as to the severity and probable duration of the individual’s impairment or impairments.” 20 C.F.R. § 404.1526 (1980). . The accuracy of this statement is supported by" }, { "docid": "20965390", "title": "", "text": "ROBERT L. TAYLOR, Chief Judge. The sole issue in this case is whether there is substantial evidence to support the decision of the Secretary of Health, Education and Welfare that plaintiff, Joe Ward, failed to show that he is entitled to a period of disability under Section 216 (i) of the Social Security Act, (42 U.S.C.A. § 416(i)), or to disability insurance under Section 223 of the Act, (42 U.S.C.A. § 423). Section 216 (i) is the so-called “disability freeze” provision which contemplates the elimination of the claimant’s record of periods during which he was under a “disability” for the purpose of determining the amount of his average monthly wage upon which the amount of his benefits is determined at some future date. Section 223 contains provisions relating to the payment of insurance monthly benefits to the claimant under disability who has reached the age of fifty. The age requirement of fifty was removed by the amendments to the Social Security Act of 1960. The amendments are not pertinent to the issues in this case. There is no question but what plaintiff met the special insured status as provided for in Section 216 (i) (3) of the Act. This section provides in substance that the claimant must have had continuous disability for a period of not less than six months at the time of the filing of his application when he had 6 quarters of coverage (as defined in Section 213 of the Act, 42 U.S.C.A. § 413) in the 13-quarter period, and 20 quarters of coverage in the 40-quarter period. It is conceded by the Government that plaintiff met the quarters of coverage requirement in the quarter ending June 30, 1953. Plaintiff filed an application for a period of disability on June 13, 1955 and applications for disability insurance benefits on July 8 and August 5, 1957. In order for him to be eligible for these benefits he must have been under continuous disability beginning not later than June 30, 1953, and continuing up to and including the date of the filing of his application for benefits (Section 223" }, { "docid": "16388421", "title": "", "text": "AINSWORTH, Circuit Judge: To qualify for disability insurance benefits under the Social Security Act, a claimant must satisfy the Act’s coverage requirement, which he may do by demonstrating he had earnings upon which social security taxes were payable for at least twenty calendar quarters during the forty-quarter period that ends with the quarter in which his disability began. The question presented by this appeal is whether a claimant, in this case Randall L. Chance, may “borrow” quarters of coverage credited to him because of his military service in World War II in order to satisfy the twenty-quarter requirement, when the military service quarters do not fall within the forty-quarter period immediately preceding disability. We hold he cannot. Randall L. Chance is a 64-year-old resident of Kennesaw, Georgia. He served in the United States Army during World War II, and thereafter worked as a civil service welder and as a self-employed land grader. On May 9,1973, Chance suffered an inferior myocardial infarction, commonly known as a heart attack, and ceased working. On July 2, 1973, he applied for social security disability insurance benefits, alleging he became disabled on May 22, 1973 because of his heart condition. The Bureau of Disability Insurance of the Social Security Administration, Department of Health, Education, and Welfare found that Chance had only seven quarters of coverage - during the relevant forty-quarter period and denied his application. Chance requested reconsideration and the Bureau affirmed its decision. On August 27, 1974, a de novo hearing was held before an administrative law judge of the Bureau of Hearings and Appeals, who affirmed the decision of the Bureau of Disability Insurance after finding that Chance had only eight quarters of coverage, and, in any event, was not disabled within the meaning of the Social Security Act. The Appeals Council affirmed the decision of the administrative law judge on June 25, 1975, the administrative law judge’s decision became the final decision of the Secretary of Health, Education, and Welfare, and Chance sought review in the district court, which reversed the Secretary’s decision. The Secretary now appeals. Sections 216(i)(3)(B)(i) and 223(c)(l)(B)(i) of" }, { "docid": "859526", "title": "", "text": "the Social Security Act, 42 U.S.C. § 405(g), for review of a final decision of the Secretary of Health, Education and Welfare that plaintiff is not entitled to social security disability insurance benefits. This matter is before the Court on defendant’s motion for summary judgment and plaintiff’s cross-motion for summary judgment. [Lack of Insured Status] Plaintiff filed an application for social security disability insurance benefits on November 10, 1969 alleging that she had become unable to work as of October 28, 1969. The application was denied on the ground that she lacked the necessary “disability insured status” in that she had only 14 of the required 20 quarters of coverage in the 40 quarter period preceding the alleged onset of disability. If 17,325 Plaintiff filed her present application for disability insurance benefits on July 6, 1970 alleging that she became disabled as of June 13, 1970. The application was denied on the ground that plaintiff had accumulated only 19 of the required 20 quarters of coverage. A woman who applies for social security disability insurance benefits before she attains the age of 62 is eligible for coverage if she has “not less than twenty quarters of coverage during the forty-quarter period which ends” with the quarter in which the application is filed. 42 U.S.C. § 416(i) (3). [Work for Daughter as Babysitter] It is undisputed that plaintiff has accumulated 19 of these 20 required quarters of coverage. Plaintiff asserts that she earned the twentieth quarter of coverage when she worked as a babysitter for her daughter from September to October, 1970. During this pe riod plaintiff’s daughter and son-in-law were both employed. Plaintiff babysat in her own home for her daughter’s two minor children. For purposes of decision only, the Secretary assumed that plaintiff did not perform any services in her daughter’s home. © 1973, Commerce Clearing House, Inc. “Employment” is defined in the Social Security Act to mean any service . . . performed . . . by an employee for the person employing him . except that . . . such term shall not include— (3) (b) service" } ]

[ { "docid": "2008769", "title": "", "text": "show that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Summary judgment may be entered if the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Appellant ACT I contends that it raised genuine issues of fact sufficient to withstand summary judgment. Section 2 of the Sherman Act makes it unlawful for any person to monopolize or attempt to monopolize any part of the trade or commerce among the several States. 15 U.S.C. § 2. A party who is injured by a violation of § 2 of the Sherman Act may sue to recover treble damages under § 4 of the Clayton Act. 15 U.S.C. § 15; Adjusters Replace-A-Car, Inc. v. Agency Rent-A-Car, Inc., 735 F.2d 884, 887 (5th Cir.1984), cert. denied, 469 U.S. 1160, 105 S.Ct. 910, 83 L.Ed.2d 924 (1985). In order to prevail on its claim under these sections, ACT I must be able to prove three elements: (1) specific intent to accomplish the monopoly; (2) anti-competitive activity, and (3) a dangerous probability that the attempt will be successful. See Swift Co. v. United States, 196 U.S. 375, 396, 25 S.Ct. 276, 279, 49 L.Ed. 518 (1905); Adjusters Replace-A-Car, 735 F.2d at 887. In reaching its decision, the district court acknowledged initially that ACT I raised questions of fact as to the first two elements of its claim. The court correctly determined, however, that no substantial fact issue was raised as to the third element. Summary judgment followed. We discuss this element below. II. Appellant must be able to show that a dangerous probability exists that BFI will be successful in its attempt to monopolize the commercial refuse market in Corsicana through “predatory pricing.” ACT I con trols the vast majority of the commerical accounts in Corsicana, while BFI only represents approximately 10% of the market. “While" } ]

[ { "docid": "17979341", "title": "", "text": "U.S. at 678, 129 S.Ct. 1937). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.” ’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Although “[a] plaintiff need not plead ‘detailed factual allegations^] ... a formulaic recitation, of the elements of a cause of action will not do,’ ” and the plaintiff must offer in support of its claim “sufficient factual matter, accepted as true, to ‘raise a right to relief above the speculative level.’ ” Simpson, 744 F.3d at 708 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). We measure each claim against this standard. III. DFA first says that Estée Lauder violated the Sherman Act by attempting to monopolize the market for duty free beauty products sold in United States airports. Section 2 of the Act establishes that “[e]very person who shall ... attempt to monopolize ... any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony.” 15 U.S.C. § 2. Section-15 of the same statute prescribes that “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor.” 15 U.S.C. § 15. A plaintiff alleging a claim for attempted monopolization under § 2 must plausibly assert three things: “(1) that the defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize and (3) a dangerous probability of achieving monopoly power.” Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993). “[T]he conduct requirement is arguably the single most important aspect of attempted monopolization.” Spanish Broad. Sys. of Fla., Inc. v. Clear Channel Commc’ns, Inc., 376 F.3d 1065, 1075 (11th Cir.2004) (quotation omitted). To survive a motion to dismiss, the plaintiff must adequately allege “actual or potential harm to competition.” Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1339 (11th Cir.2010). This means the" }, { "docid": "1549566", "title": "", "text": "either factually or legally. We agree with the defendants that this contention is merely an invitation to second-guess the business judgment of C & J as to which travel agency it prefers. Further, plaintiff’s argument that Great Escape will be forced out of business and that this development will have an anticompetitive effect through loss of an option for consumers is similarly without merit. As we stated in Products Liability Insurance Agency v. Crum & Forster Insurance Companies, 682 F.2d 660, 663 (7th Cir.1982), “there is a sense in which eliminating even a single competitor reduces competition. But it is not the sense that is relevant in deciding whether the antitrust laws have been violated.” Competition means that some may be forced out of business. The antitrust laws are not designed to guarantee every competitor tenure in the marketplace. III. Plaintiff also claims that the defendants violated Section 2 of the Sherman Act by conspiring to monopolize and attempting to monopolize interstate trade and commerce. Section 2 makes “[ejvery person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States ... guilty of a misdemeanor_” 15 U.S.C. § 2. For attempt to monopolize the plaintiff must prove: “(1) specific intent to control prices or destroy competition with respect to a part of commerce, (2) predatory or anti-competitive conduct directed to accomplishing the unlawful purpose, and (3) a dangerous probability of success.” Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427, 430 (7th Cir.1980) (quoting Gough v. Rossmoor Corp., 585 F.2d 381, 390 (9th Cir.1978), cert. denied, 440 U.S. 936, 99 S.Ct. 1280, 59 L.Ed.2d 494 (1979)). For conspiracy to monopolize the plaintiff must prove 1) the existence of a combination or conspiracy, 2) overt acts in furtherance of the conspiracy, 3) an effect upon a substantial amount of interstate commerce and 4) the existence of specific intent to monopolize. J.T. Gibbons, Inc. v. Crawford Fitting Co., 704 F.2d 787 (5th Cir.1983); Clair Olsen & Guitar City Studios," }, { "docid": "16570066", "title": "", "text": "or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states ... guilty of a misdemeanor. 15 U.S.C. § 2. To prove monopolization, Haines must show: (1) that counter-defendants possess monopoly power, or the power to control output and prices in the relevant market, and (2) that counter-defendants willfully engaged in conduct designed to acquire, maintain or enhance its monopoly power. Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427, 430 (7th Cir.1980). To establish a claim for attempted monopolization, Haines must show: (1) specific intent to control prices or destroy competition with respect to a part of commerce; (2) predatory or anticompetitive conduct directed to accomplishing the unlawful purpose; and (3) a dangerous probability of success. Great Escape, Inc. v. Union City Body Co., Inc., 791 F.2d 532, 540 (7th Cir.1986). To prove counter-defendants conspired to monopolize, Haines must show: (1) the existence of a combination or conspiracy; (2) overt acts in furtherance of the conspiracy; (3) an effect upon a substantial amount of interstate commerce; and (4) the existence of specific intent to monopolize. Id. at 540-41. Section 2 offenses require evidence of a specific intent to monopolize. Id. The mere intention to exclude competition and to expand one’s own business is not sufficient to prove a specific intent to monopolize. Id. Specific intent may be inferred from predatory conduct, or conduct that is in itself an independent violation of the antitrust laws or that has no legitimate business justification other than to destroy or damage competition. Id. Counter-defendants argue that Haines has failed to present evidence of a specific intent to monopolize or predatory conduct. To establish predatory conduct, Haines alleges that counter-defendants entered into an agreement whereby Donnelley would obtain listing information at a lower cost than that charged to Haines. Counterclaim 1113(a). The record does not establish that Don-nelley paid less for listing information than Haines. In 1983, IBT billed Haines $55,-155.78 for 1,968,421 listings at .028 cents per listing. In 1984, IBT billed Haines $61,904.27 for 1,996,912 listings at .031 cents" }, { "docid": "576489", "title": "", "text": "in establishing a claim under Section 1 of the Sherman Act. B. Sherman Act Section 2 Section 2 of the Sherman Act focuses on unitary action and provides that it shall be illegal for: Every person who shall monopolize, or attempt to monopolize, or combine or conspire ... to monopolize any part of the trade or commerce among the several States, or with foreign nations.... 15 U.S.C. § 2 (1994). To demonstrate a monopoly, Plaintiff must provide evidence of “(1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.” Eastman Kodak Co., 504 U.S. at 481, 112 S.Ct. 2072. Because the focus of Section 2 is on unitary action rather than concerted activity, a showing of “[mjonopoly power requires, of course, something greater than market power under § 1.” Id. at 480, 112 S.Ct. 2072. Because Plaintiff failed to establish that the Defendants had market power under Section 1, he necessarily fails to overcome the higher threshold required to satisfy monopoly power under Section 2. Plaintiff may also try to establish that Defendants attempted to monopolize by showing that they “had a specific intent to monopolize the relevant market; engaged in anticompetitive conduct or exclusionary conduct to implement the specific intent; and that Defendants possess sufficient monopoly power that there was a dangerous probability of success.” Farr, 1993 WL 220680, at *10. Not only has Plaintiff not carried his burden in establishing that Defendants had specific intent to monopolize — if anything, ACMC would maximize its revenues by giving staff privileges to every doctor who applied — but the defendants also lacked sufficient monopoly power such that there was a “dangerous probability of success.” See Weiss, 745 F.2d at 828. Finally, Plaintiff may attempt to show that a conspiracy or combination to monopolize by demonstrating that there was “(1) an agreement or understanding between two or more economic entities, (2) a specific intent to monopolize the relevant market, (3) the commission of" }, { "docid": "12459345", "title": "", "text": "in assessing market power. Conduct indicating that a market is not perfectly competitive does not indicate that market power is substantial and persistent, which antitrust ordinarily demands.... Even when we succeed in classifying conduct as non-competitive, the degree of market power implied can still be minor. Our general conclusions are, first, that conduct alone rarely suffices to establish single-firm market power, and certainly not to show how substantial it is. Secondly, however, certain types of conduct in oligopoly markets can show that a market is not performing optimally. As a result, conduct is somewhat more relevant to assessing power in cases involving mergers or joint ventures than it is in assessing single-firm conduct. 3 Areeda & Hovenkamp ¶ 520 at 206 (2006). Plaintiffs do not cite any authority that requires the Court to find their conduct allegations sufficient to establish monopoly power. Indeed, in Dimmitt Agri Indus., Inc. v. CPC Int’l Inc., 679 F.2d 516, 530-31 (5th Cir.1982), the Fifth Circuit found that the defendant exercised a significant degree of control over price during 1971-72, yet concluded that the conduct alone was insufficient to overcome the presumption against monopoly power implied by its market shares of 17 and 24 percent in the relevant markets. In sum, plaintiffs’ conduct allegations are insufficient for the Court to find monopoly power in the face of a market share in the neighborhood of 33 percent, which is suggested by the complaint and the Zacks Report. The Court must therefore dismiss the Section 2 monopolization claim. B. Attempted Monopolization under Section 2 of the Sherman Act In addition to prohibiting monopolization, Section 2 of the Sherman Act forbids attempts to monopolize. 15 U.S.C. § 2. “The traditional claim for attempted monopolization arises when the danger of monopolization is clear and present, but before a full blown monopolization has necessarily been accomplished.” Alaska Airlines, Inc. v. United Airlines, Inc., 948 F.2d 536, 541-42 (9th Cir.1991). The elements of attempted monopolization are that the defendant (1) engaged in predatory or anticompetitive conduct, (2) with the specific intent to monopolize, and (3) with “a dangerous probability” of achieving" }, { "docid": "16001094", "title": "", "text": "restricting competition. 3. Alternative Means. We find nothing in the record in which Virgin suggests an alternative program that would achieve the same procompetitive effect as the incentive agreements. Since the ultimate goal of our § 1 analysis is to determine whether restrictions in an agreement among competitors have a potential to harm consumers, Clorox Co., 117 F.3d at 56, Virgin’s failure to address this point leaves intact the evidence that British Airways’ incentive agreements are good for competition. While Virgin believes it was disadvantaged by such agreements, injury to a competitor cannot be said to be the sine qua non of a § 1 violation. The Sherman Act and other antitrust laws are designed to protect competition, not individual competitors. Atl. Richfield Co., 495 U.S. at 338, 110 S.Ct. 1884. Accordingly, Virgin’s cause of action under § 1 of the Sherman Act was properly dismissed. Ill Attempted Monopolization Claim Under § 2 of Sherman Act We next address the claim of attempted monopolization under § 2 of the Sherman Act. Section 2 makes it a crime to “monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations.” 15 U.S.C. § 2. Virgin charges British Airways with engaging in predatory foreclosure and the bundling of ticket sales in an attempt to foreclose transatlantic competition by diverting passengers from Virgin and other airlines to itself. Virgin Atl. Airways Ltd., 69 F.Supp.2d at 579-81. Virgin’s arguments to support this theory of attempted monopolization are set out in detail in Dr. Bernheim’s 84 page affidavit. We include his views, where pertinent, in the discussion that follows. To prove that British Airways’ practices constituted an attempted monopolization, Virgin must establish “(1) that [British Airways] has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize and (3) a dangerous probability of achieving monopoly power.” Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993). The relevant markets for Virgin’s § 2 claims are" }, { "docid": "7614859", "title": "", "text": "is “genuine” only if there is sufficient evidence for a reasonable jury to find for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Furthermore, bearing in mind that all uncertainties are to be resolved in favor of the nonmoving party, a factual dispute is only “material” if it might affect the outcome of the case. Id. Rule 56(c) directs summary judgment “after adequate time for discovery ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). III. FEDERAL ANTITRUST LAWS A. SHERMAN ACT §2 Section 2 of the Sherman Act provides: “Monopolizing trade a felony; penalty[:] Every person who shall monopolize, or at-, tempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony.” 15 U.S.C.A. § 2 (West Supp.1996). Plaintiffs’ § 2 claim alleges “PP & L’s actions constitute abuse of monopoly power, attempt to monopolize, leveraging of monopoly, predation through governmental processes and conspiracy to monopolize.” Am. Compl. ¶ 64. PP & L’s Motion seeks summary judgment on these claims, maintaining (1) it “has not monopolized or attempted to monopolize the home heating market in violation of Sherman Act § 2,” (2) that absent market power, there is no “predatory conduct” within the meaning of § 2 of the Sherman Act, and (3) “Plaintiffs’ Monopoly leveraging theory has no merit.” (See Def.’s Mem. Supp. Mot. Summ.J. at 18, 42). 1. Attempted Monopolization To establish a successful claim under § 2 of the Sherman Act for attempted monopolization, Plaintiffs must “present concrete evidence that (1) [PP & L] had engaged in predatory conduct or anticompetitive conduct with (2) specific intent to monopolize and with (3) a dangerous probability" }, { "docid": "17426805", "title": "", "text": "Boeing, Erskine, Satchell, and Branch intended to obtain monopoly power for Boeing by acquiring and using Lockheed’s trade secrets in preparation for Boeing’s EELV bid. Lockheed also alleges that the Defendants furthered the attempt by concealing their actions. Based on these allegations, Lockheed claims violations of the Sherman Act, 15 U.S.C. § 2 (2001), and of the Florida Antitrust Act of 1980, § 542.19, Florida Statutes (2003). Counts V and VII charge attempted monopolization under 15 U.S.C. § 2 and § 542.19, Florida Statutes. Counts VI and VIII charge conspiracy to monopolize under 15 U.S.C. § 2 and § 542.19, Florida Statutes. Defendants Boeing, Erskine, Satchell, and Branch have all moved to dismiss these antitrust claims, and they join in each others’ arguments. (Docs. 46, 55, 41, & 56.) A. Counts V & VII: Attempted Monopolization Section 2 of the Sherman Act provides, in part, that “[e]very person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States ... shall be deemed guilty of a felony....” 15 U.S.C. § 2 (2001); see also 15 U.S.C. § 15(a) (providing for private right of action and civil damages). In order to state a claim for attempted monopolization under either the Sherman Act or the Florida Antitrust Act, a plaintiff must allege facts that, if proven, would satisfy his burden at trial to prove that: (1) the defendant has engaged in predatory or anticompetitive conduct (2) with a specific intent to monopolize and (3) that there is a dangerous probability that defendant will achieve monopoly power. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993); U.S. Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986, 993 (11th Cir. 1993). The third element of a proper attempted monopolization claim requires a two-part showing that a defendant is close to acquiring controlling market power over the relevant product market. U.S. Anchor Mfg., Inc., 7 F.3d at 994. Focusing on this third element, Defendants challenge the legal sufficiency" }, { "docid": "6509470", "title": "", "text": "1369, 1376 (10th Cir.1979). Initially, therefore, the plaintiff must plead facts sufficient to establish the existence of a relevant market and the defendant's power in that market. Id. TVCN alleges TNT attempted to monopolize the market for the TNT channel. TVCN asserts TNT evidenced a “specific intent to control prices and destroy competition in the relevant market through predatory and anticompetitive conduct.” The specific conduct alleged includes a “group boycott, price fixing, territorial allocations, access refusal to essential facilities, exclusionary measures and unfair practices” which have assured TNT a dangerous probability of success in obtaining a monopoly in the market for the TNT channel in Metropolitan Denver. TVCN again defines the TNT channel in Metropolitan Denver as the relevant product market. However, as we discussed previously a claim cannot lie against TNT for the monopolization of its own product. See Key, 828 F.2d at 643. We conclude the relevant market as defined in TVCN’s amended complaint is insufficient as a matter of law. Thus, TVCN can prove no set of facts which show TNT has a dangerous probability of success in monopolizing the defined relevant market. TNT cannot violate the Sherman Act by attempting to monopolize a market which it is incapable of monopolizing. We therefore affirm the district court’s dismissal of TVCN’s attempt to monopolize claim against TNT pursuant to Rule 12(b)(6). 3. Conspiracy to Monopolize To establish a claim for conspiracy to monopolize in violation of section 2, a plaintiff must plead facts sufficient to support four elements: (1) “the existence of a combination or conspiracy to monopolize”; (2) “overt acts done in furtherance of the combination or conspiracy”; (3) “an effect upon an appreciable amount of interstate commerce”; and (4) “a specific intent to monopolize.” Olsen v. Progressive Music Supply, Inc., 703 F.2d 432, 438 (10th Cir.), cert. denied, 464 U.S. 866, 104 S.Ct. 197, 78 L.Ed.2d 172 (1983). In its amended complaint, TVCN alleges TNT has combined or conspired with other defendants to monopolize the market for the TNT channel. TVCN asserts the overt acts and specific intent to monopolize are evidenced by access refusal to" }, { "docid": "8790894", "title": "", "text": "plausible, its claims for monopolization in violation of § 2 of the Sherman Act, conspiracy to monopolize in violation of § 2 of the Sherman Act, and conspiracy in restraint of trade in violation of § 1 of the Sherman Act must be dismissed. C. Sandoz’s Attempted Monopolization Claim Fails Sandoz has also alleged a claim of attempted monopolization in violation of Section 2 of the Sherman Act. “[T]o demonstrate attempted monopolization!,] a plaintiff must prove (1) that the defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize and (3) a dangerous probability of achieving monopoly power.” Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993). “In order to determine whether there is a dangerous probability of monopolization, courts have found it necessary to consider the relevant market and the defendant’s ability to lessen or destroy competition in that market.” Id.; see also AD/SAT, a Div. of Skylight, Inc., 181 F.3d at 226 (“ ‘A threshold showing for a successful attempted monopolization claim is sufficient market share by the defendant’ because a defendant’s market share is ‘the primary indicator of the existence of a dangerous probability of success.’ ” (quoting Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566, 570 (2d Cir.1990))). Accordingly, for purposes of its attempted monopolization counterclaim, Sandoz need not plead that Bayer actually possesses monopoly power; facts demonstrating that Bayer has a dangerous probability of achieving monopoly power in the relevant market are sufficient. “Monopoly or market power has been defined as the power to control prices or exclude competition in the relevant market. Market pow er may be inferred from a predominant share of the market, but may also exist when an entity does not have a majority of the market share.” Syncsort Inc. v. Sequential Software, Inc., 50 F.Supp.2d 318, 329 (D.N.J.1999) (internal citations omitted). “Once the relevant market is determined, we consider a variety of factors in addition to defendant’s market share, including the strength of competition, barriers of entry, and the probable development of the market, in" }, { "docid": "4775657", "title": "", "text": "828 F.2d at 1362 (citations omitted) (emphasis added). WNG’s argument that we should apply this doctrine in this appeal is misplaced. Because this case arises in the context of a motion to dismiss under Rule 12(b)(6), we must accept as true CMS’s allegation that WNG violated Tariff 87. For that reason, the “threshold decision” which WNG would have us refer to the WUTC must necessarily be resolved in favor of CMS. Accordingly, the primary jurisdiction doctrine is simply inapplicable here. V Finally, WNG argues that we should affirm the district court on the alternate ground that CMS has failed to allege the elements of a Sherman Act claim. Section 2 of the Sherman Act provides: “Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other persons, to monopolize any part of the trade or commerce ... [commits a felony].” 15 U.S.C. § 2 (1994). In order to state a claim for monopolization under this provision, a plaintiff must prove that: (1) the defendant possesses monopoly power in the relevant market; (2) the defendant has willfully acquired or maintained that power; and (3) the defendant’s conduct has caused antitrust injury. SmileCare Dental Group v. Delta Dental Plan of California, Inc., 88 F.3d 780, 783 (9th Cir.1996) (citations omitted). In order to state a claim for attempted monopolization, a plaintiff must prove: (1) specific intent to control prices or destroy competition; (2) predatory or anti-competitive conduct to accomplish the monopolization; (3) dangerous probability of success; and (4) causal antitrust injury. Id. (citations omitted). In order to survive a motion to dismiss under Rule 12(b)(6), an antitrust complaint “need only allege sufficient facts from which the court can discern the elements of an injury resulting from an act forbidden by the antitrust laws.” Newman v. Universal Pictures, 813 F.2d 1519, 1522 (9th Cir.1987), cert. denied, 486 U.S. 1059, 108 S.Ct. 2831, 100 L.Ed.2d 931 (1988). CMS’s complaint should not be dismissed unless it appears beyond doubt that CMS can prove no set of facts in support of its claim which would entitle it to relief. SmileCare Dental" }, { "docid": "4154268", "title": "", "text": "proof at trial as to an element essential to its case, and fails to make a showing sufficient to establish a genuine dispute of fact with respect to the existence of that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). DISCUSSION To establish a violation of Section 2 of the Sherman Act, 15 U.S.C. § 2 (§ 2), Vernon would have to show (1) that Edison possessed monopoly power in the relevant market; (2) that it willfully acquired or maintained that power; and (3) that Vernon suffered a causal antitrust injury. Oahu Gas Serv., Inc. v. Pacific Resources, Inc., 838 F.2d 360, 363 (9th Cir.), cert. denied, 488 U.S. 870, 109 S.Ct. 180, 102 L.Ed.2d 149 (1988). An attempt to monopolize is also actionable under § 2. Attempted monopolization has three elements: “specific intent to monopolize, predatory or anticompetitive conduct, and a dangerous probability of success.” Drinkwine v. Federated Publications, Inc., 780 F.2d 735, 740 (9th Cir.1985), cert. denied, 475 U.S. 1087, 106 S.Ct. 1471, 89 L.Ed.2d 727 (1986). Vernon would also be required to show causal antitrust injury in an attempted monopoly case. California Computer Products, Inc. v. IBM Corp., 613 F.2d 727, 736 (9th Cir.1979). To establish a violation of Section 1 of the Sherman Act, 15 U.S.C. § 1 (§ 1), Vernon would have to prove “three elements: (1) an agreement or conspiracy among two or more persons or distinct business entities; (2) by which the persons or entities intend to harm or restrain competition; and (3) which actually restrains competition.” Morgan, Strand, Wheeler & Biggs v. Radiology, Ltd., 924 F.2d 1484, 1488 (9th Cir.1991) (citation and quotations omitted). A. Essential Facility Claims. Vernon’s foreclosure claims are based on its assertion that the EHV transmission lines, such as the Pacific Intertie and the Southwest lines, as well as the 220 kV grid, are essential facilities to which Edison has improperly refused Vernon access. In our opinion in the companion to this case, City of Anaheim v. Southern California Edison Co., 955 F.2d 1373, (9th Cir.1991), filed on the" }, { "docid": "8812318", "title": "", "text": "fails to establish the elements of a per se claim (for example, by failing to demonstrate market power), it still may prevail under the “rule of reason” if it can demonstrate that the challenged arrangements are unreasonable “in light of their actual effects on the market and their pro-competitive justifications.” Clorox Co. v. Sterling Winthrop, Inc., 117 F.3d 50, 56 (2d Cir.1997). Such an inquiry proceeds in three steps: First, the [p]laintiff bears the initial burden of showing that the challenged action has had an actual adverse effect on competition as a whole in the relevant market ____ Then, [i]f the plaintiff succeeds, the burden shifts to the defendant to establish the pro-competitive redeeming virtues of the action. Should the defendant carry this burden, the plaintiff must then show that the same pro-competitive effect could be achieved through an alternative means that is less restrictive of competition. Id. (internal citations and quotation marks omitted; alterations in original). b. Attempt and Conspiracy to Monopolize, Sherman Act § 2 Section Two of the Sherman Act provides in relevant part that [e]very person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony. 15 U.S.C. § 2 (1994). To win on an attempt to monopolize claim, a plaintiff must show “(1) that the defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize and (3) a dangerous probability of achieving monopoly power.” Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993). To win on a conspiracy to monopolize claim, a plaintiff must show “(1) proof of a concerted action deliberately entered into with the specific intent to achieve an unlawful monopoly, and (2) the commission of an overt act in furtherance of the conspiracy.” International Distribution Ctrs., Inc. v. Walsh Trucking Co., Inc., 812 F.2d 786, 795 (2d Cir.1987). 3. The Injury in Fact Requirement: Amenability to Class Determination The" }, { "docid": "4608433", "title": "", "text": "in trademark infringement or unfair competition, the court concludes that the Miller Brewing Company is not liable to Anheuser-Busch Incorporated for trademark dilution under the Illinois Anti-Dilution Act, Ill.Rev.Stat. ch. 140, § 22. D. ATTEMPT TO MONOPOLIZE 56. Under Section 2 of the Sherman Act, no person may “monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations ...” 15 U.S.C. § 2. 57. A company attempts to monopolize in violation of Section 2 when it engages in a course of conduct which would, if successful, accomplish monopolization, and which, though falling short, so closely approaches monopolization as to create a dangerous probability of it. See Lektro-Vend Corporation v. Vendo Company, 660 F.2d 255, 269-70 (7th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). (1) Elements of Claims 58. In order to prove an attempt to monopolize, a plaintiff must prove by a preponderance of the evidence: (1) a specific intent to achieve a monopoly in a relevant market; (2) predatory or anticompetitive conduct in furtherance of the purpose to monopolize; and (3) a dangerous probability of success in the relevant market. See Lektro-Vend Corporation v. Vendo Company, 660 F.2d 255, 270 (7th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982); Chillicothe Sand & Gravel Company v. Martin Marietta Corporation, 615 F.2d 427, 430 (7th Cir.1980). These elements are conjunctive. See Conoco, Inc. v. Inman Oil Company, Inc., 774 F.2d 895, 906 (8th Cir.1985). 59. The test to be applied in determining whether a trademark is being unlawfully used to confer a monopoly in a certain product is the same as in any other case wherein an unlawful monopoly, or attempt to monopolize, is alleged under Section 2 of the Sherman Act. There is a violation of that provision only if the defendant’s actions have led to or resulted in a dangerous probability that it will gain a monopoly over the relevant market. See Car-Freshner Corporation v. Auto" }, { "docid": "7614860", "title": "", "text": "of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony.” 15 U.S.C.A. § 2 (West Supp.1996). Plaintiffs’ § 2 claim alleges “PP & L’s actions constitute abuse of monopoly power, attempt to monopolize, leveraging of monopoly, predation through governmental processes and conspiracy to monopolize.” Am. Compl. ¶ 64. PP & L’s Motion seeks summary judgment on these claims, maintaining (1) it “has not monopolized or attempted to monopolize the home heating market in violation of Sherman Act § 2,” (2) that absent market power, there is no “predatory conduct” within the meaning of § 2 of the Sherman Act, and (3) “Plaintiffs’ Monopoly leveraging theory has no merit.” (See Def.’s Mem. Supp. Mot. Summ.J. at 18, 42). 1. Attempted Monopolization To establish a successful claim under § 2 of the Sherman Act for attempted monopolization, Plaintiffs must “present concrete evidence that (1) [PP & L] had engaged in predatory conduct or anticompetitive conduct with (2) specific intent to monopolize and with (3) a dangerous probability of achieving monopoly power.” Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 750 (3d Cir.1996). See also Pennsylvania Dental Ass’n v. Medical Serv. Ass’n of Pennsylvania, 745 F.2d 248, 260 (3d Cir.1984) (listing only two elements for attempted monopolization claim, “(1) a specific intent to monopolize; and (2) the consequent dangerous probability of success within the relevant geographic and product markets” but stating “[djirect evidence of specific intent need not be shown; it may be inferred from predatory or exclusionary conduct”) (citing inter alia Interstate Circuit, Inc. v. United States, 306 U.S. 208, 59 S.Ct. 467, 83 L.Ed. 610 (1939); United States v. Jerrold Elec. Corp., 187 F.Supp. 545, 567 (E.D.Pa.1960), aff'd, 365 U.S. 567, 81 S.Ct. 755, 5 L.Ed.2d 806 (1961)), cert. denied, 471 U.S. 1016, 105 S.Ct. 2021, 85 L.Ed.2d 303 (1985). (a). Specific Intent “[Plaintiffs' alleging [attempted] monopolization under § 2 must produce intent evidence.” Advo, Inc. v. Philadelphia Newspapers, Inc., 51 F.3d 1191, 1199 (3d Cir.1995). “Specific intent is the intent to accomplish the forbidden objective, an intent" }, { "docid": "8897656", "title": "", "text": "The grounds on which the Special Master recommended summary judgment on Counts I and III in his Fourth Report and Recommendation are in addition to the reasons he recommended summary judgment on those claims in his Third Report and Recommendation. (Doc. # 305). A. The Law of Attempted Monopolization Section 2 of the Sherman Act provides: Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony.... 15 U.S.C. § 2. Thus, Section 2 makes it unlawful for a Defendant to monopolize, to attempt to monopolize, or to conspire to monopolize any part of interstate or for eign trade. This statutory provision covers behavior by a single business entity as well as coordinated action taken by more than one business. A claim of attempted monopolization involves three distinct elements: “(1) the defendant has engaged in predatory or anticompetitive conduct with' (2) a specific intent to monopolize and (3) a dangerous probability of achieving monopoly power.” Spanish Broadcasting System of Fla., Inc. v. Clear Channel, 376 F.3d 1065 (11th Cir.2004) (quoting Spectrum Sports, 506 U.S. at 456, 113 S.Ct. 884). To have a dangerous probability of successfully monopolizing a market the defendant must be close to achieving monopoly power. Monopoly power is “the power to raise prices to supra-eompetitive levels or ... the power to exclude competition in the relevant market either by restricting entry of new competitors or by driving existing competitors out of the market.” U.S. Anchor Mfg., Inc., 7 F.3d at 994, quoting American Key Corp. v. Cole Nat’l Corp., 762 F.2d 1569, 1581 (11th Cir.1985). The offense of attempted monopolization requires specific intent on the defendant’s part to bring about a monopoly and a dangerous probability of success. Quality Foods v. Latin Am. Agribusiness Dev. Corp., 711 F.2d 989, 996 (11th Cir.1983). Furthermore, like the monopolization offense itself, the attempt must happen in a defined relevant market. Id. The relevant market is defined by both" }, { "docid": "16570065", "title": "", "text": "of agreement). No evidence indicates that counter-defendants participated in or otherwise affected IBT’s decisions concerning the sale of listing information to Haines or other publishers. The agreement does not restrict IBT’s alternate uses of the listing information. Any use of IBT’s listing information to restrain trade in the street address directory market in the Chicago area resulted from IBT’s independent action. Independent action cannot constitute a Section 1 violation. See Famous Brands, Inc. v. David Sherman Corp., 814 F.2d 517, 523 (8th Cir.1987). There is no genuine issue of material fact that counter-defendants violated Section 1 of the Sherman Act. Section 2 of the Sherman Act In Counts I, II and III of the counterclaim, Haines contends that counter-defendants violated Section 2 of the Sherman Act by attempting to monopolize, conspiring to monopolize, and monopolizing the use of the listing information in the street address directory market in the Chicago metropolitan area. Counterclaim ¶¶ 15, 20, 27. Section 2 of the Sherman Act renders [ejvery person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states ... guilty of a misdemeanor. 15 U.S.C. § 2. To prove monopolization, Haines must show: (1) that counter-defendants possess monopoly power, or the power to control output and prices in the relevant market, and (2) that counter-defendants willfully engaged in conduct designed to acquire, maintain or enhance its monopoly power. Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427, 430 (7th Cir.1980). To establish a claim for attempted monopolization, Haines must show: (1) specific intent to control prices or destroy competition with respect to a part of commerce; (2) predatory or anticompetitive conduct directed to accomplishing the unlawful purpose; and (3) a dangerous probability of success. Great Escape, Inc. v. Union City Body Co., Inc., 791 F.2d 532, 540 (7th Cir.1986). To prove counter-defendants conspired to monopolize, Haines must show: (1) the existence of a combination or conspiracy; (2) overt acts in furtherance of the conspiracy; (3) an effect upon a" }, { "docid": "8790893", "title": "", "text": "F.Supp.2d 389, 419 (N.D.N.Y.2004) (“[A] ‘court cannot accept the market boundaries offered by plaintiff without at least a theoretically rational explanation for excluding [alternatives].’ ” (quoting Gianna Enterprises v. Miss World (Jersey) Ltd., 551 F.Supp. 1348, 1354 (S.D.N.Y.1982))). Here, Sandoz addresses SSRI anti-depressants and St. John’s Wort, but fails to address other available treatments for PMDD and its associated symptoms, including PMS. In sum, Sandoz has failed to plead sufficient facts to demonstrate that no two-drug combination is an acceptable substitute for Yaz or Yasmin. See, e.g., B.V. Optische Industrie De Oude Delft v. Biologic, Inc., 909 F.Supp. 162, 172 (S.D.N.Y.1995) (“Simply because this new invention could allegedly do in one X-ray what previously could be done in two x-rays does not necessarily create a relevant market. Rather, it may well be that older machines requiring two Xrays work better, are more cost-efficient, etc. It is for this reason that plaintiffs’ complaint should allege facts regarding substitute products, and distinguish among comparable products.”). Because the alleged product market pleaded in Sandoz’s amended counterclaims is not plausible, its claims for monopolization in violation of § 2 of the Sherman Act, conspiracy to monopolize in violation of § 2 of the Sherman Act, and conspiracy in restraint of trade in violation of § 1 of the Sherman Act must be dismissed. C. Sandoz’s Attempted Monopolization Claim Fails Sandoz has also alleged a claim of attempted monopolization in violation of Section 2 of the Sherman Act. “[T]o demonstrate attempted monopolization!,] a plaintiff must prove (1) that the defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize and (3) a dangerous probability of achieving monopoly power.” Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993). “In order to determine whether there is a dangerous probability of monopolization, courts have found it necessary to consider the relevant market and the defendant’s ability to lessen or destroy competition in that market.” Id.; see also AD/SAT, a Div. of Skylight, Inc., 181 F.3d at 226 (“ ‘A threshold showing for a successful attempted monopolization" }, { "docid": "12459346", "title": "", "text": "yet concluded that the conduct alone was insufficient to overcome the presumption against monopoly power implied by its market shares of 17 and 24 percent in the relevant markets. In sum, plaintiffs’ conduct allegations are insufficient for the Court to find monopoly power in the face of a market share in the neighborhood of 33 percent, which is suggested by the complaint and the Zacks Report. The Court must therefore dismiss the Section 2 monopolization claim. B. Attempted Monopolization under Section 2 of the Sherman Act In addition to prohibiting monopolization, Section 2 of the Sherman Act forbids attempts to monopolize. 15 U.S.C. § 2. “The traditional claim for attempted monopolization arises when the danger of monopolization is clear and present, but before a full blown monopolization has necessarily been accomplished.” Alaska Airlines, Inc. v. United Airlines, Inc., 948 F.2d 536, 541-42 (9th Cir.1991). The elements of attempted monopolization are that the defendant (1) engaged in predatory or anticompetitive conduct, (2) with the specific intent to monopolize, and (3) with “a dangerous probability” of achieving monopoly power. Spectrum Sports, 506 U.S. at 456, 113 S.Ct. 884. 1. Dangerous Probability of Success Plaintiffs’ claim of attempted monopolization requires a showing that the defendant has a dangerous probability of successfully lessening or destroying competition in a relevant market. Id. Because an attempted monopolization claim cannot survive when the market in question is not vulnerable to monopolization, the Court will address the dangerous probability of success issue as a threshold matter before discussing the other elements of an attempted monopolization claim. See United States v. Microsoft, 253 F.3d 34, 81 (D.C.Cir.2001), cert. denied, 534 U.S. 952, 122 S.Ct. 350, 151 L.Ed.2d 264 (2001) (addressing market definition for dangerous probability of success element first). In appraising whether there is a dangerous probability of success, courts focus principally on the defendant’s share of the relevant market. See, e.g., Pastore v. Bell Tel. Co., 24 F.3d 508, 513 (3d Cir. 1994). Market definition is a necessary component of this analysis. “Defining a market for an attempted monopolization claim involves the same steps as defining a market" }, { "docid": "6850578", "title": "", "text": "for purposes of this claim is the overall market or the CAP market. The cross motions for summary judgment on Count One of Lightwave’s counterclaim are denied. Count Two: Section 2 of the Sherman Act Lightwave also seeks damages based upon attempted monopolization and conspiracy to monopolize claims under section 2 of the Sherman Act. Brooks moves for summary judgment on both claims. 1. Attempted Monopolization An attempted monopolization claim under section 2 of the Sherman Act requires proof of the following elements: 1) specific intent to monopolize; 2) predatory or anti-competitive conduct directed to accomplishing the unlawful purpose; and 3) a dangerous probability of achieving monopoly power. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 447, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993). Of course, a plaintiff must also prove standing. See Great Western Directories, Inc. v. Southwestern Bell Tele. Co., 63 F.3d 1378, 1388-90 (5th Cir.1995) (To establish business or property interest as required for standing to bring action for attempted monopolization, plaintiff must show that it intended and was prepared to enter the market.). As with the section 1 Sherman Act claim previously discussed, proving an attempted monopolization requires a determination of intent and market power. Spectrum Sports, Inc., 506 U.S. at 459. For the reasons previously discussed regarding the section 1 claim, because factual issues are presented regarding relevant market, summary judgment is inappropriate. 2. Conspiracy to Monopolize Brooks also moves for summary judgment on Lightwave’s claim of conspiracy to monopolize. A conspiracy to monopolize claim under section 2 of the Sherman Act has three elements: 1) a concerted action; 2) overt acts in support of the conspiracy; and 3) a specific intent to monopolize. Discon, Inc. v. NYNEX Corp., 93 F.3d 1055, 1062 (2d Cir.1996), cert. denied, — U.S. —, 118 S.Ct. 49, 139 L.Ed.2d 14 (1997). See also Syufy, 793 F.2d at 1000. “[N]o particular level of market power or ‘dangerous probability of success’ has to be alleged or proved in a conspiracy [to monopolize] claim where the specific intent to monopolize is otherwise apparent from the character of the actions taken.” Hunt-Wesson Foods," } ]

[ { "docid": "23554744", "title": "", "text": "A district court’s decision, however, may be upheld upon any ground which fairly supports it. Dandridge v. Williams, 397 U.S. 471, 475 & n. 6, 90 S.Ct. 1153, 1156 & n. 6, 25 L.Ed.2d 491 (1970); Jaffke v. Dunham, 352 U.S. 280, 281, 77 S.Ct. 307, 308, 1 L.Ed.2d 314 (1957) (per curiam). An examination of the relevant case law shows that the regional solicitor was correct in concluding that appellants’ claim was barred because it was not submitted within two years of its accrual. “The general rule in tort law is that the claim accrues at the time of the plaintiff’s injury.” Davis v. United States, 642 F.2d 328, 330 (9th Cir.1981), cert. denied, 455 U.S. 919, 102 S.Ct. 1273, 71 L.Ed.2d 459 (1982); accord Steele v. United States, 599 F.2d 823, 826-27 (7th Cir.1979). In certain eases, usually involving medical malpractice or hidden injuries, the claim does not accrue until the plaintiff knows or in the exercise of reasonable diligence should know of both the injury and its cause. Davis, 642 F.2d at 330-31; Steele, 599 F.2d at 827; see id. at 828 (discovery rule inapplicable to ordinary torts). Discovery of the cause of one’s injury, however, does not mean knowing who is responsible for it. The “cause” is known when the immediate physical cause of the injury is discovered. Davis, 642 F.2d at 331; Steele, 599 F.2d at 828. But cf. Liuzzo v. United States, 485 F.Supp. 1274 (E.D.Mich.1980) (claim did not accrue until plaintiffs had reason to believe government agent was person who caused injury where agent and other government officials, including the President, had asserted that other persons were responsible). With knowledge of the fact of injury and its cause the malpractice plaintiff is on the same footing as any negligence plaintiff. The burden is then on plaintiff to ascertain the existence and source of fault within the statutory period. It fol lows that diligence or lack of diligence in these efforts is irrelevant. Davis, 642 F.2d at 331. Appellants knew both the fact of injury and its immediate physical cause, the flooded highway, when" } ]

[ { "docid": "1330750", "title": "", "text": "the question of timeliness upon which the final disposition of this case will necessarily turn. B. When did the claim accrue? The parties agree that our review of the district court’s ruling under Rule 12(b)(1) is de novo, as the relevant facts are not disputed. See Donahue v. United States, 634 F.3d 615, 623 (1st Cir.2011) (noting that while appellate review of dismissals under Rule 12(b)(1) “sometimes requires deference to the trial court,” an appeal involving “only the objective reasonableness of the plaintiffs’ failure to discern at an earlier time both their injury and its likely cause” is reviewed de novo). As noted above, the FTCA limitations period expires two years after the claim accrues. 28 U.S.C. § 2401(b). A cause of action generally accrues when the plaintiff is injured. Donahue, 634 F.3d at 623. Nevertheless, in FTCA medical malpractice cases, the “discovery rule” may delay accrual until a plaintiff knows (or reasonably should know) both that he is injured and what caused his injury; it does not, however, postpone accrual until a potential plaintiff also learns that his injury was negligently inflicted. See id.; see also United States v. Kubrick, 444 U.S. 111, 122-23, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). The discovery rule incorporates an objective standard. To delay commencement of the running of the statute of limitations, “the factual basis for the cause of action must have been inherently unknowable [that is, not capable of detection through the exercise of reasonable diligence] at the time of injury.” Gonzalez, 284 F.3d at 288-89 (citation and internal quotation marks omitted); see also Ramirez-Carlo v. United States, 496 F.3d 41, 47 (1st Cir.2007). “Once a plaintiff knows of the injury and its probable cause, he/she bears the responsibility of inquiring among the medical and legal communities about whether he/she was wronged and should take legal action.” Gonzalez, 284 F.3d at 289 (citing Kubrick, 444 U.S. at 123, 100 S.Ct. 352). It is beyond reasonable dispute that the claim here accrued well before April 11, 2010. Dr. Sanchez died on April 24, 2009, after giving birth. Her injury was then, by" }, { "docid": "18066781", "title": "", "text": "the FBI on May 11, 2001. After the FBI failed to respond, the Wheelers filed suit in federal court on March 14, 2002. As in the McIntyre case, the United States moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) on the ground that the Wheelers had failed to present their administrative claims within two years of accrual, as required by the FTCA, 28 U.S.C. § 2401(b). On March 31, 2003, the district court granted the motion, finding that the Wheelers’ claim accrued no later than May 10,1998, when David Wheeler appeared on “60 Minutes.” The court reasoned that David Wheeler’s statements showed that he knew that Bulger and Flemmi were suspected in his father’s murder and that they may have escaped investigation and prosecution for the crime with the assistance of the FBI. The court then went on to say that “[i]t does not matter that not all the plaintiffs in this case were as informed as David Wheeler” because they were in possession of sufficient facts to place them on inquiry notice. Final judgment was entered on motion of the Wheelers, who then timely appealed. II. A. The FTCA Accrual Standard The FTCA provides, in relevant part, that “[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues.” 28 U.S.C. § 2401(b). Because the FTCA is a waiver of sovereign immunity, it is strictly construed. Skwira v. United States, 344 F.3d 64, 73 (1st Cir.2003). Normally, a tort claim accrues at the time of injury. Gonzalez, 284 F.3d at 288. In United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), the Supreme Court created a “discovery rule” exception for FTCA claims involving medical malpractice. The Court held that such claims accrue when a plaintiff knows of both the existence and the cause of his injury. See id. at 119-202, 100 S.Ct. 352. The Court determined that accrual does not await the point at which a plaintiff also knows that the acts inflicting the injury may constitute" }, { "docid": "715863", "title": "", "text": "no circumstances recognized by the law which would prevent the statute of limitations from expiring. The Federal Tort Claims Act allows a private person to sue the U.S. government, however, any such claim “shall be forever barred unless presented in writing ... within two years after such claim accrues ...” 28 U.S.C. § 2401(b). The Federal Tort Claims Act provides for a limited waiver of the United States’ sovereign immunity, and this waiver “should be neither extended nor narrowed by the courts.” U.S. v. Kubrick, 444 U.S. 111, 117-118,100 S.Ct. 352, 356-357, 62 L.Ed.2d 259 (1979). Federal law governs the accrual of an action under the Federal Tort Claims Act, and under federal law a cause of action generally accrues at the time of injury. In medical malpractice cases the injury may not immediately manifest itself, thus, many circuit courts have adopted the standard of “blameless ignorance”, which may be applied to decide when a plaintiff’s claim has accrued. See Casias v. U.S., 532 F.2d 1339, 1340 (10th Cir.1976) and Portis v. U.S., 483 F.2d 670, 672 (4th Cir.1973). “Blameless ignorance” means that an injured party’s claim will not accrue until the plaintiff discovers, or in due diligence should have discovered, the acts constituting the alleged malpractice. Casias v. U.S., 532 F.2d at 1340. The courts have stated that “when the facts become so grave as to alert a reasonable person that there may have been negligence related to the treatment received, the statute of limitations begins to run.” Reilly v. US., 513 F.2d 147, 150 (8th Cir.1975). Serious and unexpected consequences of treatment are sufficient to put a person on notice that he may have been legally wronged. Id. at 150. In 1979, the Supreme Court stated that in determining when a malpractice claim accrues the plaintiff need not be actually told that the acts which caused his or her injury might constitute negligence, and that nothing more than knowledge of injury and causation is required for a claim to accrue. U.S. v. Kubrick, 444 U.S. at 122, 100 S.Ct. at 359. In that case, the plaintiff, Kubrick, was" }, { "docid": "22448876", "title": "", "text": "of action is “inherently unknowable” if it is “incapable of detection by the wronged party through the exercise of reasonable diligence.” Geo. Knight & Co. v. Watson Wyatt & Co., 170 F.3d 210, 213 (1st Cir.1999) (citation and internal quotations omitted). A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. Once a plaintiff knows of the injury and its probable cause, he/she bears the responsibility of inquiring among the medical and legal communities about whether he/she was wronged and should take legal action. Kubrick, 444 U.S. at 123, 100 S.Ct. 352. As the Supreme Court stated in Kubrick: A plaintiff ... armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government. Id.; see also Hau v. United States, 575 F.2d 1000, 1003 (1st Cir.1978) (“When the facts [become] so grave as to alert a reasonable person that there may have been negligence related to the treatment received, the statute of limitations [begins] to run against the appellant’s cause of action”) (citation and internal quotations omitted) (alterations in original); Cragin v. United States, 684 F.Supp. 746, 753 (D.Me.1988), aff'd 873 F.2d 1433 (1st Cir.1989) (“after plaintiffs know of the injury at issue and its probable cause, they bear the responsibility of inquiring among the medical and legal communities whether the treatment they received was proper or warranted legal action”); Harrison v. United States, 708 F.2d 1023, 1027 (5th Cir.1983) (noting that the statute of limitations begins to run where the facts available to the plaintiff would lead a reasonable" }, { "docid": "9414098", "title": "", "text": "v. United States, 518 F.3d 173, 177 (2d Cir.2008) (emphasis added), citing Kronisch, 150 F.3d at 121. That language conflicts with the clear law of this Circuit, see, e.g., Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir.1999), \"the general rule” that FTCA claims \"accrue[ ] at the time of the plaintiff’s injury,” United States v. Kubrick, 444 U.S. 111, 120, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), and even the very case upon which Valdez relied for that proposition, see Kronisch, 150 F.3d at 121 (stating that FTCA claims typically accrue \"at the time of injury”). In any case, the apparent misstatement was unnecessary to our holding, which was that, as in this case, the diligence-discovery rule of accrual applied and therefore the claim did not accrue until the plaintiff knew enough about both the fact of her injury and its potential iatrogenic cause to protect herself by seeking legal advice. See Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 363, 126 S.Ct. 990, 163 L.Ed.2d 945 (2006); Donovan v. Red Star Marine Servs., Inc., 739 F.2d 774, 782 (2d Cir.1984). . She need not have suspected negligence for the claim to have accrued. See Kubrick, 444 U.S. at 123, 100 S.Ct. 352. A plaintiff \"armed with the facts about the harm done to him[ ] can protect himself by seeking advice in the medical and legal community” to determine whether his injury was negligently caused, and the FTCA's two-year limitations period provides ample time for that investigation. Id. . When a plaintiff, unaware that his claim is governed by the FTCA, commences a civil action against a federal employee without first presenting that claim to the appropriate federal agency and thereafter has his claim dismissed for failure to comply with the administrative requirements of 28 U.S.C. § 2675(a), the Westfall Act, Pub.L. No. 100-694, 102 Stat. 4563 (1988), extends the limitations period contained in 28 U.S.C. § 2401(b). In those circumstances, the plaintiff’s claim will be treated as timely presented if (1) \"the claim would have been timely had it been filed on the date the" }, { "docid": "23409169", "title": "", "text": "a whole range of other negligence cases arising under the Act and other federal statutes, where the legal implications or complicated facts make it unreasonable to expect the injured plaintiff, who does not seek legal or other appropriate advice, to realize that his legal rights may have been invaded. United States v. Kubrick, supra, 444 U.S. at 124, 100 S.Ct. at 360. Even if the doctrine of “blameless ignorance” extends beyond the medical mal practice area, a proposition we do not address, Kubrick prohibits the postponement of the accrual date in the instant action. Wollman was aware at the time of the accident that Gross was employed by the ASCS. He was unaware only of the legal significance of this fact. The purpose of the statute of limitations is to require the reasonably diligent presentation of tort claims. This may require a plaintiff to obtain appropriate legal counsel and together with counsel discover the facts and their possible legal ramifications so as to enable plaintiff to bring the suit within a reasonable time. As stated by the Court in Kubrick, A plaintiff such as Kubrick, armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government. Id. at 123, 100 S.Ct. at 360. Admittedly this application of the statute of limitations has especially harsh ramifications here where the record indicates little prejudice to the government if it had to defend this lawsuit. However, to accept Wollman’s argument would be in effect rewriting the two-year statute of limitations of 28 U.S.C. § 2401(b) to allow the state statute of limitations to apply whenever plaintiff is unaware of the status of the defendant as a federal employee acting within the scope of his employment. While this may be desirable, Congress has clearly not chosen to do this and any change is its prerogative and not" }, { "docid": "14483610", "title": "", "text": "consented to be sued.” Skwira v. United States, 344 F.3d 64, 72 (1st Cir.2003) (citing United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980)). “Moreover, a waiver of the Government’s sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign.” Lane v. Peña, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996). The Federal Tort Claims Act (FTCA) waives sovereign immunity by giving consent to suits “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b); 28 U.S.C. §§ 2671-2680. One condition of this waiver is that a claim “shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues.” Id. § 2401(b). “[T]he general rule under the [FTCA is] that a tort claim accrues at the time of the plaintiffs injury.” United States v. Kubrick, 444 U.S. 111, 120, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). A. Discovery Rule In Kubrick, the Supreme Court recognized a discovery rule for medical malpractice claims under the FTCA. Id. at 113, 100 S.Ct. 352. Under the discovery rule, the plaintiffs claim accrues when she “knows both the existence and the cause of [her] injury.” Id. We have previously considered the Supreme Court’s reasoning in Kubrick and applied the discovery rule to claims under the FTCA involving theft, Attallah v. United States, 955 F.2d 776, 778-79 (1st Cir.1992), and wrongful death, Skwira, 344 F.3d at 75. For claims other than medical malpractice, we apply a more forgiving rule because “the identity of the individual(s) responsible for an injury may be less evident.” Id. at 77. In such cases, a plaintiffs claim accrues only when she also knows “that there is a causal connection between the government and her injury.” Id. at 78. The “knowledge” standard under the discovery rule has two qualifications. First, “something less than definitive knowledge" }, { "docid": "16414457", "title": "", "text": "by negligent treatment in [a] YA hospital.” Id. at 115, 100 S.Ct. 352. The dispute in that case was whether, for purposes of the FTCA, Kubrick’s claim accrued in 1969 when he “was aware of his injury and its probable cause,” or in 1971, when he learned that the treatment causing his injury constituted medical malpractice. Id. at 118, 100 S.Ct. 352. The Court held that a negligence or medical malpractice claim accrues within the meaning of § 2401(b) when a plaintiff knows of both the existence and the cause of his injury, and not at a later time when he also knows that the acts inflicting the injury may constitute negligence or medical malpractice. Id. at 121-23, 100 S.Ct. 352. The Court reasoned: A plaintiff ... armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government. Id. at 123, 100 S.Ct. 352. It is also generally accepted that federal law controls when a wrongful death claim accrues under the FTCA. See, e.g., Johnston v. United States, 85 F.3d 217, 222 (5th Cir.1996); Miller v. United States, 932 F.2d 301, 303 (4th Cir.1991); Fisk v. United States, 657 F.2d 167, 170 (7th Cir.1981); Kington, 396 F.2d at 11. Thus, the question we must answer is when, as a matter of federal law, a claim for wrongful death accrues for purposes of § 2401(b) where both an injury and its cause are known prior to death and where state law provides a derivative, rather than an independent, cause of action for wrongful death. We have not previously addressed this question. In Kington, the issue before this court was whether an action, brought under the FTCA for the “wrongful death” of the plaintiffs decedent, “accrued” upon the date of death or at some later date when the plaintiff learned of the cause of death." }, { "docid": "9334293", "title": "", "text": "cannot be waived. Id. at 294. In construing the statute of limitations established by the FTCA, we should keep in mind that the FTCA waives the immunity of the United States and “not take it upon ourselves to extend the waiver beyond that which Congress intended.” United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 357, 62 L.Ed.2d 259 (1979). Plaintiff argues that his claim did not “accrue” until the October 1985 surgery, and therefore, his submission of claims to the agency was timely. The Supreme Court has held that a claim “accrues” for purposes of the two-year limitation, when the plaintiff knows both the existence and the cause of the injury. Id. at 122-25, 100 S.Ct. at 359-61. Accrual need not await “awareness by the plaintiff that his injury was negligently inflicted.” Id. at 123, 100 S.Ct. at 360. The Plaintiff knew of any alleged injury resulting from the actions taken by the hospital in 1981, 1983, and 1984. He had the affirmative duty to seek medical and legal advice regarding his alleged injuries at that time. Id. To allow Plaintiff to postpone accrual until he is passively informed by an outside source that his injury was negligently inflicted would serve to undermine the purpose of the limitations statute, that claims against the government require diligent presentation. We are aware of no impediment preventing Plaintiff from availing himself of medical and legal advice at the time of, or within a reasonable time after, the incidents. We also can discern no reason why the revelations of negligence would have suddenly appeared at the time of the 1985 surgery. See Robbins v. United States, 624 F.2d 971, 972 (10th Cir.1980) (question of knowledge of a legal duty owed or a breach of legal duty is irrelevant in determining when a medical malpractice claim accrues); Outman v. United States, 890 F.2d 1050, 1053 (9th Cir.1989) (“continuous-treatment doctrine” is not available to toll the FTCA statute of limitations when plaintiff knows what acts caused the alleged injury). It is clear from the record that the only claim properly presented to the" }, { "docid": "1405742", "title": "", "text": "the plaintiffs claim as a matter of law, and (2) there exist no genuine issues of material fact regarding the time at which plaintiffs claim has accrued and the application of the statute to plaintiffs claim which may be resolved in plaintiffs favor.” Green v. United States, 765 F.2d 105, 107 (7th Cir.1985) (quoting Yorger v. Pittsburgh Corning Corp., 733 F.2d 1215, 1219 (7th Cir.1984)). In this case, the statute of limitations has run, and there is no genuine issue of material fact in dispute as to when Mr. Massey’s claim accrued. The FTCA provides that “[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues.” 28 U.S.C. § 2401(b). In United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), the Supreme Court established the basic rule with respect to the accrual of an action for medical malpractice under the FTCA. In that case, the Court reversed a Court of Appeals’ holding that a medical malpractice claim under the FTCA did not accrue until the plaintiff knew or should have known that the physician who caused the injury was legally blameworthy. See id. at 122, 100 S.Ct. 352. In doing so, the Court held that a claim under the FTCA accrues when the plaintiff knows both the existence and cause of his injury, and not at a later time when he also knows that the acts inflicting the injury may constitute medical malpractice. See id. at 122-24, 100 S.Ct. 352. The Court stated that, for statute of limitations purposes, a plaintiffs ignorance of his legal rights and his ignorance of the fact of the injury or its cause should not receive equal treatment. See id. at 122, 100 S.Ct. 352. The Court further stated that to excuse a plaintiff from properly seeking advice in the medical and legal community by postponing the accrual of his claim “would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against" }, { "docid": "16414455", "title": "", "text": "In other words, “[t]he Act waives sovereign immunity to the extent that state-law would impose liability on a private individual in-similar circumstances.” Young v. United States, 71 F.3d 1238, 1241 (6th Cir.1995) (internal quotation marks and citation omitted). Nevertheless, the FTCA provides, in pertinent part: A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues .... 28 U.S.C. § 2401(b) (emphasis added). The Supreme Court explained that this limiting provision is the balance struck by Congress in the context of tort claims against the Government; and we are not free to construe it so as to defeat its obvious purpose, which is to encourage the prompt presentation of claims.... We should also have in mind that the Act waives the immunity of the United States and that in construing the statute of limitations, which is a condition of that waiver, we should not take it upon ourselves to extend the waiver beyond that which Congress intended.... Neither, however, should we assume the authority to narrow the waiver that Congress intended. United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (internal citations omitted). The Supreme Court noted, however, that legislative history is silent as to “when a tort claim ‘accrues’ within the meaning of 28 U.S.C. § 2401(b).” Id. at 119 n. 6, 100 S.Ct. 352. In actions based on negligence or medical malpractice, the Supreme Court has held that federal law controls as to when a claim accrues under the FTCA. Id. at 123, 100 S.Ct. 352. In Kubrick, the issue before the Supreme Court was “whether [a tort claim against the United States] ‘accrues’ within the meaning of the [FTCA] when the plaintiff knows both the existence and the cause of his injury or at a later time when he also knows that the acts inflicting the injury may constitute medical malpractice.” Id. at 113, 100 S.Ct. 352. The plaintiff in that case filed suit under the FTCA “alleging that he had been injured" }, { "docid": "6532686", "title": "", "text": "during and after these incidents. The district court then granted the government’s motion to dismiss, concluding in a thorough and well-reasoned opinion that plaintiffs claim is time-barred under § 2401(b). II. “A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues.” 28 U.S.C. § 2401(b). This statute is a limitation on the government’s waiver of sovereign immunity that must be strictly construed. See, e.g., Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957). Since Reilley’s last sexual assault occurred in mid-1987 and plaintiff filed her administrative claim in early 1992, the claim is time-barred unless it did not accrue until long after the abusive incidents ended. When a claim accrues for purposes of § 2401(b) “is a question of federal law which must be determined by the court in light of the surrounding circumstances.” Rodman v. United States, 752 F.2d 343, 344 (8th Cir.1985). “[T]he general rule under the [FTCA] has been that a tort claim accrues at the time of the plaintiffs injury.” United States v. Kubrick, 444 U.S. 111, 120, 100 S.Ct. 352, 358, 62 L.Ed.2d 259 (1979). However, Kubrick held that, in medical malpractice cases, if the plaintiff has been in “blameless ignorance” of the injury, the cause of action does not accrue until the plaintiff knows of the fact of injury and its cause. 444 U.S. at 120-22 & n. 7,100 S.Ct. at 358-60 & n. 7. The cause of action accrues at that time even if plaintiff does not know that the injury is legally redressable — if plaintiff fails to act despite knowledge of the harm and its cause, defendant is entitled to the limitations defense. See 444 U.S. at 123-24,100 S.Ct. at 360. The district court and the parties have assumed that the Kubrick discovery exception applies in this case. Plaintiff argues that her claim is only for psychological injury (the post-traumatic stress disorder), that this claim did not accrue until she learned in August 1991 that" }, { "docid": "22392966", "title": "", "text": "The party who is “claiming the benefit of [the discovery rule] ... bears the burden of showing that he is entitled to it.” Wollman, 637 F.2d at 549. The district court correctly set out the rule from United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), governing the accrual of medical malpractice claims under 28 U.S.C. § 2401(b). Under Kubrick, the claim does not accrue until the plaintiff is aware both of the injury and its cause. Id. at 120-21, 100 S.Ct. at 358-59. The Court rejected the conclusion of an appeals court which held that a claim does not accrue until the plaintiff “knows or should suspect that the doctor who caused his injury was legally blameworthy.” Id. at 121,100 S.Ct. at 359. For statute of limitations purposes, a plaintiffs ignorance of his legal rights should not be treated the same as the plaintiffs ignorance of the existence and cause of his injury. Id. at 122, 100 S.Ct. at 359. The Court explained: That he has been injured in fact may be unknown or unknowable until the injury manifests itself; and the facts about causation may be in the control of the putative defendant, unavailable to the plaintiff or at least very difficult to obtain. The prospect is not so bleak for a plaintiff in possession of the critical facts that he has been hurt and who has inflicted the injury. He is no longer at the mercy of the latter. There are others who can tell him if he has been wronged, and he need only ask. If he does ask and if the defendant has failed to live up to minimum standards of medical proficiency, the odds are that a competent doctor will so inform the plaintiff. Id. Kubrick focused on the plaintiffs duty, once “armed with the facts about the harm done to him” to seek advice regarding the possibility of legal action. Id. at 123, 100 S.Ct. at 360. Whether the advice received is competent or incompetent makes no difference to the accrual of his claim. Id. at 124,100 S.Ct." }, { "docid": "16414456", "title": "", "text": "Neither, however, should we assume the authority to narrow the waiver that Congress intended. United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (internal citations omitted). The Supreme Court noted, however, that legislative history is silent as to “when a tort claim ‘accrues’ within the meaning of 28 U.S.C. § 2401(b).” Id. at 119 n. 6, 100 S.Ct. 352. In actions based on negligence or medical malpractice, the Supreme Court has held that federal law controls as to when a claim accrues under the FTCA. Id. at 123, 100 S.Ct. 352. In Kubrick, the issue before the Supreme Court was “whether [a tort claim against the United States] ‘accrues’ within the meaning of the [FTCA] when the plaintiff knows both the existence and the cause of his injury or at a later time when he also knows that the acts inflicting the injury may constitute medical malpractice.” Id. at 113, 100 S.Ct. 352. The plaintiff in that case filed suit under the FTCA “alleging that he had been injured by negligent treatment in [a] YA hospital.” Id. at 115, 100 S.Ct. 352. The dispute in that case was whether, for purposes of the FTCA, Kubrick’s claim accrued in 1969 when he “was aware of his injury and its probable cause,” or in 1971, when he learned that the treatment causing his injury constituted medical malpractice. Id. at 118, 100 S.Ct. 352. The Court held that a negligence or medical malpractice claim accrues within the meaning of § 2401(b) when a plaintiff knows of both the existence and the cause of his injury, and not at a later time when he also knows that the acts inflicting the injury may constitute negligence or medical malpractice. Id. at 121-23, 100 S.Ct. 352. The Court reasoned: A plaintiff ... armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require" }, { "docid": "4324582", "title": "", "text": "Robbins consulted a doctor who stated that the marks might be permanent. On April 20, 1977, Robbins filed an administrative claim with the Air Force for the injury, which was denied. If Robbins’ claim accrued more than two years before he filed the administrative claim, it is barred under 28 U.S.C. § 2401(b). This statute of limitations for the Tort Claims Act provides in relevant part that “[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues . . . Robbins’ first contention is governed by United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), wherein the Supreme Court held that a claim accrues within the meaning of § 2401(b) when a claimant knows of the existence and the cause of his injury. Id. 444 U.S. at 121, 100 S.Ct. at 359. The Court expressly disapproved circuit decisions holding that accrual does not occur until a claimant has knowledge that the acts causing injury might constitute medical malpractice. Id. Thus the question of Robbins’ knowledge of a legal duty owed him or a breach of that duty is irrelevant. Robbins also argues that he should not be judged by the standard of Kubrick because he was a minor at the time of his injury, unable to exercise the diligence of an adult. It is well established, however, that a claimant’s minority does not toll the running of the statute of limitations under the Federal Tort Claims Act. See, e. g., Smith v. United States, 588 F.2d 1209 (8th Cir. 1978); Pittman v. United States, 341 F.2d 739 (9th Cir.), cert. denied, 382 U.S. 941, 86 S.Ct. 394, 15 L.Ed.2d 351 (1965); United States v. Glenn, 231 F.2d 884 (9th Cir.), cert. denied, 352 U.S. 926, 77 S.Ct. 223, 1 L.Ed.2d 161 (1956). Cf. Casias v. United States, 532 F.2d 1339 (10th Cir. 1976) (insanity does not toll running of the time period of § 2401.) Robbins’ second contention is that a genuine factual issue exists concerning" }, { "docid": "18298532", "title": "", "text": "Cir. 1973); and (4) When the disease manifests itself. Karjala v. Johns-Manville Products Corp., 523 F.2d 155 (8th Cir. 1975); Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). The United States Supreme Court has refused to interpret the discovery rule to include discovery of a legal causation. In United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), the plaintiff brought an action against the government pursuant to the Federal Tort Claims Act for injuries allegedly suffered as a result of the negligent treatment received at a Veterans Administration hospital. The Court distinguished between plaintiff’s ignorance of his legal rights and ignorance of his injury or its cause, stating that: We thus cannot hold that Congress intended that “accrual” of a claim must await awareness by the plaintiff that his injury was negligently inflicted. A plaintiff such as Kubrick, armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government. Id. at 123, 100 S.Ct. at 360 (footnote omitted). The Court held that for purposes of the Federal Tort Claims Act’s statute of limitations, the cause of action accrues when the plaintiff knows of both the existence and the cause of his injury, but the Court refused to hold that in addition to knowledge of his injury and its cause the plaintiff must also know that acts inflicting the injury might constitute negligent conduct by the defendant. Given the West Virginia cases discussed heretofore wherein the court has applied the discovery rule, this court must determine what interpretation of the rule that West Virginia would adopt in the present case. The state court’s decisions to extend the use of the discovery rule to determine when a cause of action accrues have focused on the question of what point in time it is realistic, fair" }, { "docid": "7389527", "title": "", "text": "accrual. The government argued that a wrongful death claim under the FTCA accrues on the date of death, while Mrs. Diaz contended that, following the traditional medical malpractice rule, her claim did not accrue until she both knew of her husband’s death and also knew or exercising reasonable diligence should have known the cause of his death, namely the government’s treatment of her husband. The district court granted summary judgement in favor of the government. Mrs. Diaz filed notice of appeal on December 17, 1997, and we have jurisdiction pursuant to 28 U.S.C. § 1291. II. STANDARD OF REVIEW We review grants of summary judgement de novo, using the same legal standard as the district court. Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1374 (11th Cir.1996). Summary judgement is appropriate when the pleadings, depositions and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgement as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). In making this assessment, we must view the evidence in the light most favorable to the nonmoving party. Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir.1992). III. DISCUSSION In order to bring a tort action against the United States, a plaintiff must act within the two-year statute of limitations period established by the FTCA. The applicable provision dictates that “[a] tort against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues.” 28 U.S.C. § 2401(b). The general rule is that a claim under the FTCA accrues at the time of injury. United States v. Kubrick, 444 U.S. 111, 120, 100 S.Ct. 352, 358, 62 L.Ed.2d 259 (1979). In certain situations, such as medical malpractice, the claim may accrue at a later date. The rule for medical malpractice claims is that they accrue when the plaintiff knows of both the injury and its cause. Id., at 22, 100 S.Ct. at 359. The rationale" }, { "docid": "18066782", "title": "", "text": "entered on motion of the Wheelers, who then timely appealed. II. A. The FTCA Accrual Standard The FTCA provides, in relevant part, that “[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues.” 28 U.S.C. § 2401(b). Because the FTCA is a waiver of sovereign immunity, it is strictly construed. Skwira v. United States, 344 F.3d 64, 73 (1st Cir.2003). Normally, a tort claim accrues at the time of injury. Gonzalez, 284 F.3d at 288. In United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), the Supreme Court created a “discovery rule” exception for FTCA claims involving medical malpractice. The Court held that such claims accrue when a plaintiff knows of both the existence and the cause of his injury. See id. at 119-202, 100 S.Ct. 352. The Court determined that accrual does not await the point at which a plaintiff also knows that the acts inflicting the injury may constitute medical malpractice. Id. at 122, 100 S.Ct. 352. Distinguishing between ignorance of the facts (of injury or its cause) and ignorance of legal rights, the Court reasoned that a claimant, once armed with knowledge of the fact of injury and the identity of the parties that caused the injury, is no longer at the mercy of the government. At that point, claimants can go to others, such as doctors or lawyers, who will tell them if they are victims of malpractice. Id. The same is not necessarily true of plaintiffs who are ignorant of the facts, particularly when the government may be in possession or control of the necessary information. This court has extended this discovery rule to FTCA claims outside the medical malpractice context. Skwira, 344 F.3d at 74; Attallah v. United States, 955 F.2d 776, 780 (1st Cir.1992). Most circuits also apply a discovery rule to wrongful death actions. See Skwira, 344 F.3d at 74 (collecting cases). Under the discovery rule, “a claim accrues when the plaintiff discovers, or in the exercise of" }, { "docid": "1871697", "title": "", "text": "uphold any district court finding that is permissible in light of the evidence.” Id. at 813. (citation omitted). Through the FTCA, the United States waives its sovereign immunity from tort claims, making itself liable “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. However, “[a] tort claim against the United States shall be forever barred unless it is presented to the appropriate Federal agency within two years after such claim accrues.” 28 U.S.C. § 2401(b). “The purpose behind 28 U.S.C. § 2401(b) — the limitations provision of the FTCA — is to require the reasonably diligent presentation of tort claims against the government.” Arvayo v. United States, 766 F.2d 1416, 1418 (10th Cir.1985) citing United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979)). Furthermore: Section 2401(b), like statutes of limitations generally, represents a legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time, and that the right to be free of stale claims in time comes to prevail over the right to prosecute them. Id. at 1418-19 (citations omitted). Both § 2401(b) and its legislative history are “silent as to the meaning of ‘accrues.’ ” Id. at 1419. Federal law controls the issue of when a federal cause of action accrues, but “because the statute waives the sovereign immunity of the United States, courts should be mindful to construe it in a manner which neither extends nor narrows the waiver Congress intended.” Id. In United States v. Kubrick, 444 U.S. 111, 120, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), the United States Supreme Court stated, “the general rule under the Act has been that a tort claim accrues at the time of the plaintiffs injury.” However, the Court found an exception in medical malpractice and latent injury cases, adopting therein the “discovery rule.” The discovery rule, which holds a claim does not accrue until the injured party knows of both the existence and cause of the injury, is followed to “protect plaintiffs" }, { "docid": "8910226", "title": "", "text": "had led to Appellant’s and his co-defendants’ original indictment. Appellee contends, however, that Appellant’s claim accrued, and the limitations period began to run, when Appellant was acquitted. Before a malicious prosecution claim can accrue, the underlying criminal proceeding must terminate in the plaintiffs favor. Heck v. Humphrey, 512 U.S. 477, 489, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Based on the repeated instances of prosecutorial misconduct enumerated by Judge Hoyt, Appellant and his co-defendants were acquitted of all charges on January 12, 1996. Thus, the proceeding was terminated in Appellant’s favor. A cause of action under federal law accrues within the meaning of § 2401(b) “when the plaintiff knows or has reason to know of the injury which is the basis of the action.” Brown v. Nationsbank Corp., 188 F.3d 579, 589-90 (5th Cir.1999) (internal quotes and citations omitted), cert. denied, 530 U.S. 1274, 120 S.Ct. 2740, 147 L.Ed.2d 1004 (2000). In FTCA cases, [a] plaintiff ... armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government. United States v. Kubrick, 444 U.S. 111, 123, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). Ascertaining Appellant’s awareness of the existence of a possible cause of action has two elements: “(1) [t]he existence of the injury; and (2) causation, that is, the connection between the injury and the defendant’s actions.” Piotrowski v. City of Houston, 51 F.3d 512, 516 (5th Cir.1995). As to causation, Appellant need not have knowledge of fault in the legal sense for the statute to begin to run, but [Appellant] must have knowledge of facts that would lead a reasonable person (a) to conclude that there was a causal connection ... or (b) to seek professional advice, and then, with that advice, to conclude that there was a causal connection between [Appellee’s acts] and [Appellant’s] injury. Id. (internal quotes and citations" } ]

[ { "docid": "22663846", "title": "", "text": "counsel substantially conformed to Travit Robinson’s affidavit and further recited: “I was under the impression that he was going to [file the notice of appeal] without me, [and also] I neglected to differentiate the rules as to appealing this type of a. case [from the Rules applying to the appeal] of a civil case.” All references to Rules are to the Federal Rules of Criminal Procedure unless otherwise stated. Rule 37 (a) (2) of Fed. Rules Crim. Proc. provides: “Time for Taking Appeal. An appeal by a defendant may be taken within 10 days after entry of the judgment or order appealed from, but if a motion for a new trial or in arrest' of'judgment has been made within the 10-day period an appeal from a judgment of conviction may be taken within 10 days after entry of the order denying the motion. When a court after trial imposes senteneé upon a defendant not represented by counsel, the defendant shall be advised of his right to appeal and if he so requests, the clerk shall prepare and file forthwith a notice of appeal on behalf of the defendant. . . See, e. g., Martin v. United States, 263 F. 2d 516 (C. A. 10th Cir.); Bryant v. United States, 261 F. 2d 229 (C. A. 6th Cir.); United States v. Isabella, 251 F. 2d 223 (C. A. 2d Cir.); Banks v. United States, 240 F. 2d 302 (C. A. 9th Cir.); Wagner v. United States, 220 F. 2d 513 (C. A. 4th Cir.); Kirksey v. United States, 94 U. S. App. D. C. 393, 219 F. 2d 499; Brant v. United States, 210 F. 2d 470 (C. A. 5th Cir.); McIntosh v. United States, 204 F. 2d 545 (C. A. 5th Cir.); Marion v. United States, 171 F. 2d 185 (C. A. 9th Cir.); Swihart v. United States, 169 F. 2d 808 (C. A. 10th Cir.); United States v. Froehlich, 166 F. 2d 84 (C. A. 2d Cir.). It is thus made to appear that the court below has itself recognized and enforced this Eule in Kirksey v. United States," } ]

[ { "docid": "2131123", "title": "", "text": "all he could’ to effect timely filing of a notice of appeal was entitled to be heard. [Fallen v. United States, 378 U.S. 139, 144 [84 S.Ct. 1689, 12 L.Ed.2d 760] (1964) ]. What more can a defendant do than to entrust his rights to an officer of the court ? ” 9 Moore’s Federal Practice ¶ 204.19 (1969). See also, Morris v. Florida, 393 U.S. 850, 89 S.Ct. 84, 21 L.Ed.2d 120 (1968) (dissenting opinion of Mr. Justice Black); Berman v. United States, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012 (1964) (dissenting opinion of Mr. Justice Black); Christoffel v. United States, 88 U.S.App.D.C. 1, 190 F.2d 585 (1950). In cases where an actual finding of lack of effective assistance of counsel has been made, courts have held that “[fundamental fairness requires that [the petitioner] be granted the rights which were lost to him through no fault of his own. * * * By continuing [his] imprisonment * * * the State courts have affirmatively deprived [him] of the due process constitutionally his under the Fourteenth Amendment.” United States ex rel. Maselli v. Reincke, 383 F.2d 129, 134-35 (2d Cir. 1967). See also, Gairson v. Cupp, 415 F.2d 352 (9th Cir. 1969); Wright v. Boles, 303 F.Supp. 872 (N.D.W.Va.1969); Vena v. Warden, No. 150625 (Super.Ct.Htfd. Cty. July 25, 1967). There is no persuasive reason for a different result where rigid adherence to procedural rules has the same effect as a finding of incompetence. Fundamental fairness is equally lacking where in one fell swoop the petitioner’s right to appeal is forfeited by counsel’s default. The adverse effect upon the petioner’s rights would not be any greater if counsel had been covertly disloyal, cf. Desmond v. United States, 333 F.2d 378 (1st Cir. 1964), or guilty of conduct which rendered a trial a “mockery of justice.” Cf. Kruchten v. Eyman, 406 F.2d 304, 312 (9th Cir. 1969); United States ex rel. Maselli v. Reincke, supra, 383 F.2d at 132. Nor should he be made to suffer a more severe penalty. The unfairness of this kind of procedural forfeiture is especially" }, { "docid": "15410485", "title": "", "text": "is excusable. The character and scope of the opportunity must, of course, depend upon the circumstances, including importantly the petitioner’s allegations, and a formal hearing will become necessary if the facts are in dispute. Trial judges will be free to devise procedures reasonably calculated to develop the facts effectively and expeditiously. And it goes without saying that the decision as to whether there was excusable neglect must be approached and made in the spirit of liberality that led to the 1966 amendment. The petition is granted, the order of the District Court is vacated, and the case is remanded for a determination as to excusable neglect for petitioner’s failure to initiate an appeal within ten days after the entry of the judgment of his conviction, and for such further action as that determination may warrant. So ordered. . Pursuant to 28 U.S.C. § 1915(a). . The action of the District Judge is incorporated in an endorsement on petitioner’s affidavit reading “Denied—Not timely—Sentenced 1/26/68.” There is no indication that any inquiry was made as to whether the tardiness was excusable. . F.R.Crim.P. 37(a) (1). . United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); United States v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947). But see Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). . United States v. Robinson, supra note 4. But see Dillane v. United States, 121 U.S.App.D.C. 354, 350 F.2d 732 (1965) ; Carrell v. United States, 118 U.S.App.D.C. 264, 335 F.2d 686 (1964); Paulding v. United States, 118 U.S.App.D.C. 264, 335 F.2d 686 (1964). . Petitioner’s affidavit served adequately as a notice of appeal, and if submitted in time conferred the jurisdiction essential to our entertaining the appeal he desires. See Belton v. United States, 104 U.S.App.D.C. 81, 84, 259 F.2d 811, 814 (en banc 1958); Shannon v. United States, 93 U.S.App.D.C. 4, 6-7, 206 F.2d 479, 481-482 (1953); Randolph v. Randolph, 91 U.S.App.D.C. 170, 198 F.2d 956 (1952); Boykin v. Huff, 73 App.D.C. 378, 121 F.2d 865 (1941). Cf. Kirksey v." }, { "docid": "13030067", "title": "", "text": "PER CURIAM: Although the procedural situation is somewhat confused because of the multiple and alternative nature of appellant’s motions in the District Court, what we consider to be before us is essentially an appeal from that court’s action in denying leave to appeal in forma pauperis because the petition was filed after the time had expired in which a notice of appeal from a criminal conviction may be filed. Rule 37(a) (2), Fed. R.Crim.P. There being no issue of fact as to the failure to file an appeal within the prescribed time, the District Court’s action was correct under United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960), and we affirm it. This affirmance is, however, without prejudice to appellant’s filing in due course a new motion under 28 U.S.C. § 2255 seeking the vacation and re-entry of his sentence. The reconciliation of Robinson with the seeming equities of the convicted defendant whose failure to appeal in the 10-day period is not his fault has elicited varying responses. Desmond v. United States, 333 F.2d 378 (1st Cir. 1964); Boruff v. United States, 310 F.2d 918 (5th Cir. 1962); Calland v. United States, 323 F.2d 405 (7th Cir. 1963); Dodd v. United States, 321 F.2d 240 (9th Cir. 1963). Cf. Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). Within our own circuit there has been a comparable disparity of approach. Compare Paulding v. United States, 118 U.S.App.D.C. 264, 335 F.2d 686 (1964), with Carrell v. United States, 118 U.S.App.D.C. 264, 335 F.2d 686 (1964). In the record before us there appear to be allegations that appellant’s counsel, retained for his defense at the trial, never apprised him of his right to file a notice of appeal, or of the time within which that right must be exercised. If true, and if unexplained, this impresses us as such an extraordinary inattention to a client’s interests as to amount to ineffective assistance of counsel cognizable under Section 2255. A motion under that statute containing such' allegations, and otherwise entertainable by the court," }, { "docid": "12982353", "title": "", "text": "counsel he could not personally file a notice of appeal, and that a subsequent similar effort also met with failure. He argued that his filing past the ten-day period should be deemed timely as he was prevented by the clerk from filing within the ten days. The government contended that Statler had made no effort to file his notice of appeal during the time permitted. Because there existed a factual dispute as to what, if anything, Statler had done to file his appeal, we referred the matter to the Southern District court to take testimony, and find the facts and report. On January 27, 1965 Judge Murphy held a hearing at which Statler, his former attorney, and members of the staff of the office of the clerk of the district court testified. Judge Murphy concluded that Statler’s testimony was “incredible and unworthy of belief” and he found that Statler “did not appear at the Clerk's Office on November 23, 1964, or on any date prior thereto m an attempt to file a notice of appeal.” We think that the record amply supports the conclusions reached by Judge Murphy. Accordingly we grant the government’s motion to dismiss the appeal. WATERMAN, Circuit Judge (concurring). I concur. The December 3 notice is out of time, for we are bound by United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960) and United States v. Berman, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012 (1964). In view of the uncompromising rigidity of interpretation that was given to Rule 37(a) (2) in Berman, we did all that we had power to do when we requested the district court to find whether Statler, having no courthouse representation by professional counsel during the crucial ten days, made any bona fide attempt at the courthouse to file his own notice of appeal during that time. I point out, as did Justice Black in his dissent for the minority of the Court in Berman, 378 U.S. at 537, 84 S.Ct. 1899, that after sentence a represented would-be appellant is worse off than an unrepresented" }, { "docid": "21491696", "title": "", "text": "MURRAH, Chief Judge. Peoples was convicted and sentenced pursuant to jury trial on a one-count indictment charging him with unlawfully entering a bank with intent to commit a felony, in violation of 18 U.S.C. § 2113(a). On trial of the case he was represented by retained counsel. He was granted leave to appeal from that judgment in forma pauperis and competent counsel was appointed to represent him. After hearing oral argument on the merits and upon careful consideration of the briefs and record submitted, this Court in a per curiam opinion dismissed the appeal as untimely for failure to comply with the jurisdictional requirements of Rule 37(a) (2), F.R.Crim.P. See: Peoples v. United States (10 CA), 324 F.2d 689, citing United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259. Having granted certiorari, the Supreme Court vacated our judgment of dismissal and remanded the case “for consideration in the light of Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed. 760, decided this date.” Peoples v. United States, 378 U.S. 586, 84 S.Ct. 1929, 12 L.Ed.2d 1040. We think this case clearly distinguishable-, from the facts in Fallen. In the Fallen case, letters written by the convicted defendant and addressed' to the Clerk of the Court “asking for a. new trial and for an appeal” were received by the Clerk four days after the-expiration of the time for filing notice-of appeal prescribed by Rule 37(a) (2).. The letters were dated within the ten-day pex-iod and if promptly mailed would have been, in the course of normal events,, received by the Clerk within the prescribed period. On the basis of the record, there was no reason to doubt that the date on the letters was accurate and that they were deposited with the prison authorities for mailing. In these circumstances, “petitioner had done all that: could reasonably be expected to get the letter to its destination within the required 10 days.” He was held, therefore, not to be chargeable with the-delay. In short, the timely deposit with, the prison authorities constituted a timely filing within" }, { "docid": "11148935", "title": "", "text": "District of Columbia was authorized. The former issue is raised by the Government; the latter we raise sua sponte. A. Regarding the timeliness of Ford’s notice of appeal, the facts may be summarized as follows: Final judgment was entered on August 9, 1979, the date upon which Ford was sentenced for the second time. Afterward, Ford was taken to the Metropolitan Correctional Center in Chicago, Illinois. While incarcerated Ford prepared a pro se notice of appeal dated August 16. He alleges that it was tendered to prison authorities on that date. Although it need not have been, see Fed.R.App.P. 3(c), the notice of appeal was “notarized” by a parole officer acting pursuant to 18 U.S.C. § 4004, but not until August 20. It was not received and filed by the district court until August 29. The ten-day period for timely filing of the notice of appeal expired on August 20. See Fed.R.App.P. 4(b), 26(a). Thus, Ford’s notice of appeal was untimely. The Government asserts that because a timely notice of appeal is “mandatory” and “jurisdictional,” see Temple v. United States, 386 U.S. 961, 87 S.Ct. 1024, 18 L.Ed.2d 110 (1967); Berman v. United States, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012 (1964); United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); United States v. Tallman, 437 F.2d 1103 (7th Cir. 1971), this appeal must be dismissed. Ford relies primarily upon Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). The Government’s position imputes to the appellate rules a draconian rigidity which the Supreme Court eschewed in Fallen. 378 U.S. at 142, 84 S.Ct. at 1691. As Professor Moore notes, a timely notice of appeal is not “jurisdictional” in the sense of subject matter jurisdiction. 9 Moore’s Federal Practice ¶204.02[2]. Of course, the appellate rules must be complied with, but the extent to which there has been substantial compliance, and to which that will suffice, are primarily matters of sound judicial discretion. See, e. g., United States v. Solly, 545 F.2d 874 (3d Cir. 1976) (notice of appeal deemed" }, { "docid": "12982354", "title": "", "text": "We think that the record amply supports the conclusions reached by Judge Murphy. Accordingly we grant the government’s motion to dismiss the appeal. WATERMAN, Circuit Judge (concurring). I concur. The December 3 notice is out of time, for we are bound by United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960) and United States v. Berman, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012 (1964). In view of the uncompromising rigidity of interpretation that was given to Rule 37(a) (2) in Berman, we did all that we had power to do when we requested the district court to find whether Statler, having no courthouse representation by professional counsel during the crucial ten days, made any bona fide attempt at the courthouse to file his own notice of appeal during that time. I point out, as did Justice Black in his dissent for the minority of the Court in Berman, 378 U.S. at 537, 84 S.Ct. 1899, that after sentence a represented would-be appellant is worse off than an unrepresented one, cf. Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). Here, Statler, though on the court records represented by counsel; in fact had no courthouse representation, and was worse off than either a represented or unrepresented would-be appellant. The lawyer who represented him at trial in the district court informed Statler after sentence that he would not file the notice of appeal, but the docket appearance had not been formally withdrawn after sentence nor had the district court been otherwise notified that counsel of record was terminating whatever professional responsibility he may have owed to his convicted client after sentence. After he had sentenced Statler, Judge Murphy granted bail “pending appeal” and it would seem clear that if the sentencing judge had then known that trial counsel was not going to file a notice of appeal for his erstwhile client the judge would have himself, pursuant to Rule 37(a) (2), advised Statler as “ * * a defendant not represented by counsel * •* *>»■" }, { "docid": "15410486", "title": "", "text": "the tardiness was excusable. . F.R.Crim.P. 37(a) (1). . United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); United States v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947). But see Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). . United States v. Robinson, supra note 4. But see Dillane v. United States, 121 U.S.App.D.C. 354, 350 F.2d 732 (1965) ; Carrell v. United States, 118 U.S.App.D.C. 264, 335 F.2d 686 (1964); Paulding v. United States, 118 U.S.App.D.C. 264, 335 F.2d 686 (1964). . Petitioner’s affidavit served adequately as a notice of appeal, and if submitted in time conferred the jurisdiction essential to our entertaining the appeal he desires. See Belton v. United States, 104 U.S.App.D.C. 81, 84, 259 F.2d 811, 814 (en banc 1958); Shannon v. United States, 93 U.S.App.D.C. 4, 6-7, 206 F.2d 479, 481-482 (1953); Randolph v. Randolph, 91 U.S.App.D.C. 170, 198 F.2d 956 (1952); Boykin v. Huff, 73 App.D.C. 378, 121 F.2d 865 (1941). Cf. Kirksey v. United States, 94 U.S.App.D.C. 393, 219 F.2d 499 (1954), cert. denied 358 U.S. 848, 79 S.Ct. 74, 3 L.Ed.2d 82 (1958). . Advisory Committee’s Note to F.R.Crim.P. 37(a) (2) ¶ 5. . See Coppedge v. United States, 369 U.S. 438, 441-442, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). . F.R.Crim.P. 32(a) (2). . Ibid. . Unless the right is intelligently and effectively waived, the defendant must be represented by counsel when sentence is imposed. Mempa v. Rhay, 389 U.S. 128, 129, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); Daniel v. United States, 107 U.S.App.D.C. 110, 112, 274 F.2d 768, 770 (1960), cert. denied 366 U.S. 970, 81 S.Ct. 1935, 6 L.Ed.2d 1260 (1961); Gadsden v. United States, 96 U.S.App.D.C. 162, 165, 223 F.2d 627, 630 (1955); McKinney v. United States, 93 U.S.App.D.C. 222, 225, 208 F.2d 844, 847 (1953). And see 18 U.S.C. § 3006A(c); F.R.Crim.P. 44(a). . See, e. g., Fulwood v. Clemmer, 111 U.S.App.D.C. 184, 186 n. 5, 295 F.2d 171, 173 n. 5 (1961); Smith v. United States, 106 U.S.App.D.C. 169, 170," }, { "docid": "6214840", "title": "", "text": "to deny a taxpayer that option when one of its own employees prevents timely filing. A Supreme Court decision concerning an analogous situation also supports our conclusion that Curry’s petition should be deemed timely filed. Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964), involved a notice of appeal from a criminal conviction which had to be filed within 10 days. Fallen placed his notice in the prison mail within 10 days, but it did not arrive on time because of the prison’s mail pickup schedule. Noting that the 10 day requirement was jurisdictional, the Court of Appeals dismissed the appeal. Fallen v. United States, 306 F.2d 697 (5th Cir. 1962). But the Supreme Court reversed because, [A]lthough the Government had the opportunity, it introduced no evidence — and admitted on oral argument that it had none — to dispute the record facts that petitioner had done all that could reasonably be expected to get the letter to its destination within the required 10 days. Since petitioner did all he could under the circumstances, we decline to read the Rules so rigidly as to bar a determination of his appeal on the merits. 378 U.S. at 144, 84 S.Ct. at 1692. The government attempts to distinguish Fallen by observing that the Internal Revenue Code’s jurisdictional provisions do not. contain the equivalent of Rule 2 of the Rules of Criminal Procedure which directed a construction of fairness and sympathy. But no such admonition is required for a court to interpret a statute to reach what is admittedly the fair result when such a construction is reasonable. Furthermore, Curry’s case would present a constitutional issue concerning his right of access to the courts secured by the due process clause of the fifth amendment if his petition were dismissed under these circumstances. Hence, by deeming Curry’s petition timely filed, we follow the familiar course of avoiding a constitutional decision when a case may be disposed of fairly on other grounds. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis," }, { "docid": "14981067", "title": "", "text": "employs every procedural right to which his client may be entitled. Berg v. Cranor, 209 F.2d 567 (9 Cir.1954); De Maurez v. Swope, 104 F.2d 758 (9 Cir.1939); Cf. White v. Beto, 322 F.2d 214 (5 Cir.1963). Nor can the fact that counsel for petitioner failed to advise him of his right to appeal or failed to inform the court that he was withdrawing from the ease because of his client’s indigency be deemed action under color of state law. Indeed, the right to appeal may be forfeited through oversight or ineptitude on the part of such counsel. See Berman v. United States, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012 (1964) ; Peoples v. United States, 337 F.2d 91 (10 Cir. 1964), cert. den., 381 U.S. 916, 85 S.Ct. 1540, 14 L.Ed.2d 436 (1965). There remains the consideration of whether the state trial judge was under a procedural duty ordained by the Due Process Clause to affirmatively advise petitioner of his right to appeal under Texas law. Turman and his attorney stood before the trial judge at the time he was sentenced. Neither of them intimated to the court at that time why the motion for a new trial was being withdrawn or in any way attempted to communicate petitioner’s indigency to the court. Under these circumstances the trial judge cannot be deemed to have been put on notice of the facts leading up to the sentencing. Consequently, there is not presented the ease wherein the trial court should have considered certain statements of the defendant at the time of sentencing as tantamount to invoking the court’s assistance in seeking post-conviction relief from the judgment and sentence, in which case it is arguable that the right to appeal has been frustrated by state action. See United States ex rel. Mitchell v. Follette, 358 F.2d 922 (2 Cir.1966). The minimum procedural requirements necessary to satisfy due process depend upon the circumstances and interests of the parties involved. Dixon v. Alabama State Board of Education, 294 F.2d 150 (5 Cir.1961). “ * * * ‘due process,’ unlike some legal rules," }, { "docid": "304337", "title": "", "text": "consider is “a showing of unique circumstances.” Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., supra, 371 U.S. at 217, 83 S.Ct. 283. In Harris, during the initial thirty day limit for appeal the district judge granted petitioner’s motion for an extension based upon a showing of “excusable neglect.” The court of appeals reversed this holding and consequently found that the appeal was untimely filed and dismissed for lack of appellate jurisdiction. The Supreme Court first noted that “[i]n view of the obvious great hardship to a party who relies upon the trial judge’s finding of ‘excusable neglect’ prior to the expiration of the 30-day period and then suffers reversal of the finding, it should be given great deference by the reviewing court.” 371 U.S. at 217, 83 S.Ct. at 285. Reversing and remanding for appellate hearing on the merits, the Court held that “[wjhatever the proper result as an initial matter . . . the record contains a showing of unique circumstances sufficient that the Court of Appeals ought not to have disturbed the motion judge’s ruling.” Id. Several years later, in Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964), the Court reached a similar result. Although the notice of appeal was filed four days late, appellant had been incarcerated and ill, had not been assigned appellate counsel, and had in fact delivered the notice to the proper prison authorities for mailing to the court in time for filing. The Court concluded “that petitioner had done all that could reasonably be expected.” 378 U.S. at 144, 84 S.Ct. at 1692. Both cases involved very “unique” and severe circumstances and it is therefore not unusual that courts more frequently arrive at the opposite conclusion. For example, the illness of an attorney, Berman v. United States, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012 (1964), “a misunderstanding among appellant’s lawyers,” Pittsburgh Towing Co. v. Mississippi Valley Barge Line Co., 385 U.S. 32, 33, 87 S.Ct. 195, 17 L.Ed.2d 31 (1966), and the difficulty of coordinating attorneys from several states, Files v. Rockford, supra," }, { "docid": "11148936", "title": "", "text": "see Temple v. United States, 386 U.S. 961, 87 S.Ct. 1024, 18 L.Ed.2d 110 (1967); Berman v. United States, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012 (1964); United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); United States v. Tallman, 437 F.2d 1103 (7th Cir. 1971), this appeal must be dismissed. Ford relies primarily upon Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). The Government’s position imputes to the appellate rules a draconian rigidity which the Supreme Court eschewed in Fallen. 378 U.S. at 142, 84 S.Ct. at 1691. As Professor Moore notes, a timely notice of appeal is not “jurisdictional” in the sense of subject matter jurisdiction. 9 Moore’s Federal Practice ¶204.02[2]. Of course, the appellate rules must be complied with, but the extent to which there has been substantial compliance, and to which that will suffice, are primarily matters of sound judicial discretion. See, e. g., United States v. Solly, 545 F.2d 874 (3d Cir. 1976) (notice of appeal deemed “filed” on date received by district court); United States v. Grimes, 426 F.2d 706 (5th Cir. 1970) (notice of appeal notarized during the ten-day period but received afterward); Kiger v. United States, 417 F.2d 1194 (7th Cir. 1969), cert. denied, 397 U.S. 1066, 90 S.Ct. 1506, 25 L.Ed.2d 688 (1970) (timely petition in forma pauperis considered notice of appeal); United States v. Conversano, 412 F.2d 1143 (3d Cir.), cert. denied, 396 U.S. 905, 90 S.Ct. 219, 24 L.Ed.2d 181 (1969) (appearance bond executed within the ten-day period considered timely notice of appeal); see generally 9 Moore’s Federal Practice ¶ 204.19. A letter written by an indigent prisoner within the time for appeal informing the trial court of a desire to appeal may be regarded as sufficient to constitute the taking of an appeal . United States v. Duncan, 310 F.2d 367, 368 (7th Cir. 1962), cert. denied, 373 U.S. 938, 83 S.Ct. 1542, 10 L.Ed.2d 693 (1963) (citations omitted). In Duncan a letter dated February 19, purporting to be a notice of appeal from an" }, { "docid": "18578734", "title": "", "text": "in the duties of appointed counsel under this rule is the filing of a notice of appeal upon request. Andrews, who indicated to the court that he wanted to appeal but did not know how, was denied the opportunity to make such a request when the district court incorrectly relieved Lee of any further obligation to represent Andrews without appointing substitute counsel. One of the purposes of the above rules is to prevent the occurrence in this case: failure of an incarcerated indigent defendant to perfect his appeal within the ten day period. Under all of the circumstances present here, none of which are disputed by the Government, we conclude as a matter of law that Andrews has established excusable neglect. Cf. Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). We therefore have jurisdiction to consider the merits of his appeal. III. SPEEDY TRIAL ACT Andrews contends that his rights under the Speedy Trial Act were violated by the two and one-half month delay between the voir dire and the trial date. Under the Act, a defendant must be tried within seventy days from the filing date of the information or indictment, or from the date the defendant appears before a judicial officer of the court, whichever occurs last. 18 U.S.C. § 3161(c)(1). Andrews was arraigned October 6 on the original indictment, and October 13 on the superseding indictment. Voir dire was conducted November 7, but the trial was postponed until January 23, 1984. In denying Andrews’ motion to dismiss for failure to comply with the Act, the district court concluded that the seventy day period had begun to run October 6 for all charges in the superseding indictment. The court calculated that, given the amount of excludable delay accrued pursuant to 18 U.S.C. § 3161(h), Andrews’ trial had to start no later than January 3, 1984. Citing United States v. Gonzalez, 671 F.2d 441 (11th Cir.), cert. denied, 456 U.S. 994, 102 S.Ct. 2279, 73 L.Ed.2d 1291 (1982), the court held that no violation had occurred because Andrews’ trial had commenced within the" }, { "docid": "13030068", "title": "", "text": "United States, 333 F.2d 378 (1st Cir. 1964); Boruff v. United States, 310 F.2d 918 (5th Cir. 1962); Calland v. United States, 323 F.2d 405 (7th Cir. 1963); Dodd v. United States, 321 F.2d 240 (9th Cir. 1963). Cf. Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). Within our own circuit there has been a comparable disparity of approach. Compare Paulding v. United States, 118 U.S.App.D.C. 264, 335 F.2d 686 (1964), with Carrell v. United States, 118 U.S.App.D.C. 264, 335 F.2d 686 (1964). In the record before us there appear to be allegations that appellant’s counsel, retained for his defense at the trial, never apprised him of his right to file a notice of appeal, or of the time within which that right must be exercised. If true, and if unexplained, this impresses us as such an extraordinary inattention to a client’s interests as to amount to ineffective assistance of counsel cognizable under Section 2255. A motion under that statute containing such' allegations, and otherwise entertainable by the court, would entitle appellant to a hearing. If the court should find the facts to be as alleged, it should, by the expedient of vacating and resen-tencing, restore appellant to the status of one on whom sentence has just been imposed and who has 10 days in which to institute a direct appeal. Whether there are in fact grounds for such an appeal seems to us a subject to which appellant is entitled to address himself once he has been restored to the aforementioned status. Affirmed. . Rule 37(a) (2) presently requires the court to inform a defendant not represented by counsel at the time of sentencing of his right to appeal; and the clerk, if then requested to do so by the defendant, must prepare and file a notice of appeal on his behalf. In the Second Preliminary Draft of Proposed Amendments to the Rules of Criminal Procedure for the United States District Courts (March 1964), prepared by the Advisory Committee on Criminal Rules of the Judicial Conference of the United States, this provision is" }, { "docid": "14033582", "title": "", "text": "the legislation as a whole’ this Court has followed that purpose, rather than the literal words. Id. at 400, 86 S.Ct. at 857, quoting United States v. American Trucking Ass’ns, 310 U.S. 534, 543, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940). Accord, United States v. Shirey, 359 U.S. 255, 79 S.Ct. 746, 3 L.Ed.2d 789 (1959). These rules of construction are particularly appropriate in interpreting the Federal Rules of Criminal Procedure. The Rules are not, and were not intended to be, a rigid code with an inflexible meaning irrespective of the circumstances. Fallen v. United States, 378 U.S. 139, 142, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). Rule 2 admonishes that “[tjhese rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.” As Justice Black remarked in his dissent to the Court’s summary affirmance in Berman v. United States, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012 (1964), “The Criminal Rules were framed with the declared purpose of ensuring that justice not be thwarted by those with too little imagination to see that procedural rules are not ends in themselves, but simply means to an end: the achievement of equal justice for all. I have no doubt that the disposition of this case would have been very congenial to the climate of Baron Parke’s day. I confess, however, that I am uncomfortable with the notion that courts exist to fashion and preserve rules inviolate instead of to apply those rules to do justice to litigants.” Id. at 538, 84 S.Ct. at 1899. The situation confronting the Supreme Court in Fallen v. United States, supra, was similar to that in the case at bar. There the clerk of the district court received the defendant’s notice of appeal a few days after the 10 day period specified in Rule 37(a). The delay was caused by a combination of factors beyond the defendant’s control. The defendant became sick immediately after sentencing, and during much of the ten dhy period" }, { "docid": "14981066", "title": "", "text": "of his trial so that he could obtain appellate review of his conviction. When it was determined that the reporter who transcribed Norvell’s trial had died some years before, there was an attempt to reconstruct the testimony by recalling the witnesses who testified at the trial, none of whom could recall the facts as they occurred in 1941. Thereafter, the trial judge denied Norvell’s motion for the transcript. In holding that Illinois did not deny the defendant due process of law or the equal protection thereof, the Court stated, 373 U.S. at 423, 83 S.Ct. at 1368, “When, through no fault of the State, transcripts of criminal trials are no longer available because of the death of the court reporter, some practical accommodation must be made.” (Italics added) Such accommodations must be herein made. The State of Texas cannot be held at fault for the failure of Petitioner’s attorney to perfect his appeal. Self-employed counsel is not an officer of the state and no duty devolves upon the state court to assure itself that counsel employs every procedural right to which his client may be entitled. Berg v. Cranor, 209 F.2d 567 (9 Cir.1954); De Maurez v. Swope, 104 F.2d 758 (9 Cir.1939); Cf. White v. Beto, 322 F.2d 214 (5 Cir.1963). Nor can the fact that counsel for petitioner failed to advise him of his right to appeal or failed to inform the court that he was withdrawing from the ease because of his client’s indigency be deemed action under color of state law. Indeed, the right to appeal may be forfeited through oversight or ineptitude on the part of such counsel. See Berman v. United States, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012 (1964) ; Peoples v. United States, 337 F.2d 91 (10 Cir. 1964), cert. den., 381 U.S. 916, 85 S.Ct. 1540, 14 L.Ed.2d 436 (1965). There remains the consideration of whether the state trial judge was under a procedural duty ordained by the Due Process Clause to affirmatively advise petitioner of his right to appeal under Texas law. Turman and his attorney stood before" }, { "docid": "16921272", "title": "", "text": "of facts as of record” and denied the same as being without merit, whether considered as a motion to withdraw a guilty plea under Rule 32(d) or as a motion to vacate sentence under 28 U.S.C. § 2255. And see: Ching v. United States, 10 Cir., 292 F.2d 31. We must first consider the Government’s motion to dismiss the appeal as untimely, for failure to comply with the jurisdictional requirements of Rule 37(a) (2), F.R.Crim.P. See: Peoples v. United States (10 CA), 324 F.2d 689, remanded 378 U.S. 586, 84 S.Ct. 1929, 12 L.Ed.2d 1040 on remand 337 F.2d 91 (September, 1964). The Court’s order denying the instant motion was filed May 13, 1964, but the appellant apparently did not receive it until May 25th. The requisite notice of appeal was notarized on May 26th, and received by the clerk for filing on June 1, 1964. The ten-day limitation period provided by Rule 37(a) (2) commences on the date of “actual notice or receipt of the clerk’s notice rather than from the date of the entry of the order.” Lohman v. United States, 6 Cir., 237 F.2d 645. And see: West v. United States, 94 U.S.App.D.C. 46, 222 F.2d 774; and Carter v. United States, 10 Cir., 168 F. 2d 310. Cf. Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760; and Peoples v. United States (10 CA), 337 F.2d 91 (1964). The notice of appeal having been filed within ten days from receipt of the Court’s order, it was timely. The execution of the consent to transfer forms is conceded. The contention is, however, that actual receipt of the Informations is prerequisite to the jurisdiction of the sentencing court; and, that the record does not conclusively show this crucial fact. But, each consent form signed by appellant and witnessed by his attorney contained a clause expressly reciting that, “I, John Jake Ching, defendant in the above-entitled and numbered ease, do hereby acknowledge receipt of a copy of the Criminal Information pending against me in the above case.” In these circumstances, there are no grounds for" }, { "docid": "2131122", "title": "", "text": "on procedural rules indignantly condemned such a result: “It is monstrous to say in any case that a person must lose a valuable right simply because an officer of the court has blundered. That result is tolerated in civil cases only because it is conceived to be desperately necessary if litigation is to end. But ‘[c]onventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged.’ [Sanders v. United States, 373 U.S. 1, 8 [83 S.Ct. 1068, 10 L.Ed.2d 148] (1963) ] * * *. [T]he proposition that a party must suffer for the mistake of his attorney * * * is not necessary in the context of the time for appeal in a criminal case. The government is not prejudiced by a slightly tardy appeal. Why should the defendant lose a valuable right to the advantage of no one simply because his attorney, an officer of the court, makes a mistake? The Supreme Court has already held that a defendant who ‘did all he could’ to effect timely filing of a notice of appeal was entitled to be heard. [Fallen v. United States, 378 U.S. 139, 144 [84 S.Ct. 1689, 12 L.Ed.2d 760] (1964) ]. What more can a defendant do than to entrust his rights to an officer of the court ? ” 9 Moore’s Federal Practice ¶ 204.19 (1969). See also, Morris v. Florida, 393 U.S. 850, 89 S.Ct. 84, 21 L.Ed.2d 120 (1968) (dissenting opinion of Mr. Justice Black); Berman v. United States, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012 (1964) (dissenting opinion of Mr. Justice Black); Christoffel v. United States, 88 U.S.App.D.C. 1, 190 F.2d 585 (1950). In cases where an actual finding of lack of effective assistance of counsel has been made, courts have held that “[fundamental fairness requires that [the petitioner] be granted the rights which were lost to him through no fault of his own. * * * By continuing [his] imprisonment * * * the State courts have affirmatively deprived [him] of the due process constitutionally his" }, { "docid": "23083035", "title": "", "text": "comparable factual situation see United States v. Isabella, 2 Cir. 1958, 251 F.2d 223, where the defendant was sentenced on May 1, 1957, but did not file his notice of appeal until May 13, 1957. The Second Circuit said in stating the case: “The notice of appeal, however, which should have been filed on the tenth day after sentence, or on May 11, 1957 at the latest was not filed * * * until Monday, May 13, 1957.” (emphasis added) Thus in Isabella, May 1, the date of sentencing, was not included in the ten-day period. May 2 was the first day and May 11 was the tenth day. C.F. United States v. Robinson, 1960, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259, and Berman v. United States, 1964, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012. Even if the word “days” were construed not to mean calendar days, but rather to mean increments of 24 hours from the time of the signing of the order, the interceptions were terminated within the prescribed period. The order having been signed at 5:30 p. m. on June 17, 1969, the Agents could have continued interceptions for seven 24-hour periods until 5:30 p. m. on June 24. They actually terminated the wiretap at 2:30 p. m. on June 24, according to the uncontradicted evidence before Judge Mehrtens. The Court therefore holds that the F. B.I. Agents executed the order of authorization to intercept in conformity to all of its provisions and that the interceptions of June 24, 1969, were authorized by the order. The Court has considered all other grounds urged by Movants in their motions to suppress statements and evidence and finds them to be without merit. All such motions are therefore overruled and denied as to all Movants making or adopting such motions. The supplemental motion to suppress of William Sklaroff will be considered in more detail in the next section of this order. VIII. Supplemental Motion to Suppress of William Sklaroff On September 14, 1970, Movant William Sklaroff filed a supplemental motion to suppress evidence seized at his" }, { "docid": "10098233", "title": "", "text": "800 (5 Cir. 1965). Reversed and remanded. . The precise description was “a 410 gauge under shotgun having a barrel length of less than eighteen inches and an overall length of less than twenty-six inches.” . “§ 5851 Possessing firearms illegally It shall be unlawful for any person to receive or possess any firearm which has at any time been transferred in violation of sections 5811, 5812(b), 5813, 5814, 5844, or 5846, of which has at any time been made in violation of section 5821, or to possess any firearm which has not been registered as required by section 5841. Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of such firearm, such possession shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such possession to the satisfaction of the jury.” . People v. Anders, 167 Cal.App.2d 65, 333 P.2d 854 (1959). . The system used by California for handling indigent appeals is described in the case of In re Nash, 61 Cal.2d 491, 39 Cal. Rptr. 205, 393 P.2d 405 (1964). . The letters received by the court were as follows: Letter undated, envelope postmarked July 10, 1964. Letter dated August 21, 1964, received August 24, 1964. Letter dated August 30, 1964, postmarked September 1, 1964. Letter dated September 23, 1964. Letter undated delivered by Mrs. Schwander by hand on September 24, 1964. Letter dated “Wed. 13, 64,” postmarked and received October 15, 1964. Letter dated October 19, 1964, and postmarked October 20, 1964. . It should be noted here that the requirement that notice of appeal be filed within ten days is to be liberally construed. Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). Also appellant’s conduct in waiting more than ten days is to be measured against his many efforts to appeal both immediately and over the ensuing period. Brewen v. United States, 375 F.2d 285 (5 Cir. 1967). Here appellant asserts that his mother was unahle to convey to him the fact that counsel did not" } ]

[ { "docid": "6328379", "title": "", "text": "with applications of the doctrine that taxation depends upon the substance and not the form of a transaction. See e. g., Commissioner of Internal Revenue v. Court Holding Co., 1945, 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981; Gregory v. Helvering, 1935, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596; Diggs v. Commissioner of Internal Revenue, 2 Cir., 1960, 281 F.2d 326, 330; cf. National Investors Corp. v. Hoey, 2 Cir., 1944, 144 F.2d 466. See also B. Bittker, J. Eustice, Federal Income Taxation of Corporations and Shareholders § 13.01, at 605 (2d ed., 1966). Yet tax law also recognizes that the motive of tax avoidance will not alone establish tax liability if the transaction does not do so without it. Gregory v. Helvering, supra, 293 U.S. at 469, 55 S.Ct. at 267: “The legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted. * * * But the question for determination is whether what was done, apart from the tax motive, was the thing which the statute intended.” Where a transaction has economic substance and is economically realistic, it should be recognized for tax purposes. Tax motive alone is not the criterion for determining its legitimacy. Knetsch v. United States, 1960, 364 U.S. 361, 365 & n. 2, 81 S.Ct. 132, 5 L.Ed.2d 128; Gregory v. Helvering, supra, 293 U.S. at 470, 55 S.Ct. 266; Friedlander Corp. v. Commissioner of Internal Revenue, 5 Cir., 1954, 216 F.2d 757; Chisholm v. Commissioner of Internal Revenue, 2 Cir., 1935, 79 F.2d 14. In this case, the district court elevated its “close scrutiny” to the point where it disregarded the actual economic impact of Ajax’s activities. Ajax was not a shell as was the corporation in Gregory, supra. It raised its own funds from .some of New Harris’ stockholders, from some who were not New Harris’ stockholders, and from a bank that had no other connection with the transaction. As we have indicated, Ajax’s activity did have economic substance and notwithstanding" } ]

[ { "docid": "6303886", "title": "", "text": "statute. * * * [Fn. refs, omitted. Emphasis added.] It is now well established that the incidence of taxation depends upon the substance of the transaction and not the mere form, where the form is not imbued with economic reality. Commissioner v. Court Holding Co., 324 U.S. 331 (1945). In order to assess the form and ascertain the substance of a transaction, we must determine (1) the purpose of the transaction, and (2) whether it affects the taxpayer’s beneficial interest apart from the tax consequences. Knetsch v. United States, 364 U.S. 361, 366 (1960); Decon Corp. v. Commissioner, 65 T.C. 829, 838 (1976). Repeatedly, taxpayers have sought to obtain advantageous tax consequences through the manipulation of controlled entities. See, e.g., Higgins v. Smith, supra; Griffiths v. Commissioner, 308 U.S. 355 (1939); Decon Corp. v. Commissioner, supra; Palmer v. Commissioner, 44 T.C. 92 (1965), affd. per curiam 354 F.2d 974 (1st Cir. 1965). In the instant case, Reilly was the general partner of Aragon and owned all the capital stock of HPC. In addition, it is clear that Reilly organized Aragon to acquire the apartment complex and was the moving force behind the entire transaction. Since no evidence was offered to show that Reilly lacked complete control of either Aragon or HPC, we must conclude that such control existed. Karme v. Commissioner, 73 T.C. 1163, 1186 (1980), on appeal (9th Cir., May 5, 1980); Decon Corp. v. Commissioner, supra at 839; Crown Cork International v. Commissioner, 4 T.C. 19, 25 (1944), affd. 149 F.2d 968 (3d Cir. 1945). Although \"mere control alone” will not allow the form of a transaction to be disregarded, it indicates that the transaction was not made at arm’s length. Decon Corp. v. Commissioner, supra at 839. See also Sun Properties v. United States, 220 F.2d 171 (5th Cir. 1955). Clearly, Reilly was effectively dealing with himself with respect to HPC’s purported sale of the apartment complex to Aragon. He not only controlled both Aragon and HPC, but signed the articles of agreement on behalf of both entities. Such an absence of arm’s-length dealing requires us to" }, { "docid": "3398604", "title": "", "text": "“Mrs. Hardman and Corporation are essentially participants in a joint venture with Mrs. Hardman contributing the capital____” The Hardmans and Hardman, Inc. timely appeal. II. Substance, not form, controls the characterization of a taxable transaction. Gregory v. Helvering, 293 U.S. 465, 469-70, 55 S.Ct. 266, 267-68, 79 L.Ed. 596 (1935). Courts will not tolerate the use of mere formalisms solely to alter tax liabilities. CIR v. Court Holding Co., 324 U.S. 331, 334, 65 S.Ct. 707, 708, 89 L.Ed. 981 (1945); Peterson v. CIR, 380 F.2d 1, 2 (9th Cir.1967). On the other hand, we recognize that tax consequences are an important consideration in many commercial transactions and the mere fact that a bona fide transaction is arranged in such a way that it confers tax benefits does not invalidate the transaction. Gyro Eng’g, Corp. v. United States, 417 F.2d 437, 440 (9th Cir.1969). Whether the $109,568 payment in 1977 was in satisfaction of an obligation arising from a sale or a dividend cannot be viewed in isolation but must be considered in the context of the overall transaction. The parties agree that the payment correlates to the 1972 property transfer. In this context, characterization of the payment turns on the nature of the property transfer. The Hardmans have characterized this transaction as a sale of property financed in part by a loan to the .corporation. Mrs. Hardman’s inability to keep up with the payments serves as a valid business reason for transferring the land in exchange for uncertain future profits. Courts closely scrutinize the economic reality of such transactions to determine whether the taxpayer’s characterization is genuine or whether the transaction, was, as the IRS contends here, a sale in name only. See Fin Hay Realty Co. v. United States, 398 F.2d 694, 697 (3d Cir.1968). If a transfer by a shareholder to her corporation is found to be an equity investment, payments of “interest” or “principal” by the corporation will be treated as constructive dividends or redemptions. See B. Bittker & J. Eustace, Federal Income Taxation of Corporations and Shareholders ¶ 7.05[3] (1979). This is because Congress has" }, { "docid": "6744086", "title": "", "text": "been invoked when determining whether a party to a transaction may, in fairness, be held to its obligations arising thereunder. Whereas Balthrope refers to the situation in which one party, at the expense of the other, tax-ignorant, party slips a covenant into the contract, 356 F.2d at 31, 33-34, Dixie Finance, 474 F.2d at 504-05 and Sonnleitner, 598 F.2d at 467-68, place emphasis upon whether the covenants involved therein were given for value and were bargained for at arms length. Although, under the approach adopted in the foregoing cases, the absence of any relationship between “economic reality” and the agreement indeed may be strong evidence of mistake, fraud, overreaching, duress, or perhaps some other ground for equitable recission, such as inadequacy of consideration, those decisions simply do not elevate the “economic reality” inquiry to that of a talisman, and require the Commissioner to blind himself to other relevant factors. In none of those decisions did this Court allow a taxpayer, having voluntarily and at arms length bargained for a particular form of transaction, with complete foreknowledge of the tax consequences flowing therefrom, and having represented to the Commissioner that the chosen form reflected the true nature of the transaction, to disavow that form as a sham designed for the sole purpose of misleading the Commissioner, and, having already received substantial nontax benefits therefrom, adopt one with more favorable present tax consequences. Indeed, this Court in an analogous factual situation has strongly rejected the notion that a taxpayer may bind the Commissioner to a secret understanding as to the effect of an agreement. In Winn-Dixie Montgomery, Inc. v. United States, 444 F.2d 677 (5th Cir. 1971), taxpayer argued that because it did not intend to allocate any portion of the purchase price to goodwill, the Commissioner should be bound by that determination, absent a contrary expression in the agreement. This Court responded: No decision holds or suggests that such a one-sided, uncommunicated apportionment of a sales price is conclusive on the taxing authorities, and it is obvious that it would be dangerous and unfair to lay down that categorical rule. The" }, { "docid": "2328200", "title": "", "text": "same lines, petitioners contend that the Tax Court’s opinion was improperly based on a legally unprecedented, novel, and unique “bifurcated sham transaction theory.” If the Commissioner treats a transaction as a sham, petitioners argue, he cannot allow certain deductions or credits related thereto and disallow others — a transaction either is a sham or it is not. In the present case, the Commissioner allowed the petitioners to deduct certain interest and lease acquisition costs, as well as professional fees, associated with the joint ventures, but disallowed depreciation and management fee deductions and investment tax credits. The Commissioner also disallowed a current deduction of the implementation fees, but did allow them to be amortized over five years. Petitioners maintain that by allowing the joint ventures to deduct these expenses, the Commissioner has effectively conceded that the subject transactions have economic substance and business purpose. The “bifurcated transaction” approach does have a basis in established law, however. As the Fourth Circuit held in Rice’s Toyota, “a sham transaction may contain elements whose form reflects economic substance and whose normal tax consequences may not therefore be disregarded.” 752 F.2d at 96 (allowing interest deductions on recourse debt even though underlying transaction was a sham); see also Bail Bonds by Marvin Nelson, Inc. v. Commissioner, 820 F.2d 1543, 1549 & n. 6 (9th Cir.1987). We agree that within the framework of a sham transaction a taxpayer may incur bona fide obligations which should be recognized for tax purposes. Here the Commissioner did not err in allowing the joint ventures’ interest deductions on their recourse debt along with certain other payments to outside parties. More troubling, however, is the Commissioner’s acquiescence in the petitioners’ amortization of the so-called implementation fees. Given its view that the purported sale was without substance, it seems inconsistent to treat those fees as bona fide obligations. Nevertheless, we do not accept that the Commissioner has conceded the transactions at issue had economic substance merely because it handled one item in a questionable manner. Petitioners have not shown that they were in any way prejudiced by the Commissioner’s conduct. In fact," }, { "docid": "13642628", "title": "", "text": "not significant that the cattle turned out to be worth less than he owed on them; (3) the contracts imposed an unequivocal duty to pay; and (4) no collusion was shown in the arrangement. The Commissioner responds that the Tax Court’s evaluation of the facts underlying the case is not clearly erroneous. The Commissioner is not required to recognize, for tax purposes, those transactions which lack economic substance. E.g., Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596 (1935). “The presence or absence of economic substance is determined by viewing the objective realities of the transaction, namely, whether what was actually done is what the parties to the transaction purported to do.” Killingsworth v. Commissioner, 864 F.2d 1214, 1216 (5th Cir.1989). In assessing the true nature of Massengill’s dealings, the Tax Court was called upon to “resolve whether, as a practical matter, those transactions ha[d] any economic impact outside the creation of tax deductions.” Thompson v. Commissioner, 631 F.2d 642, 646 (9th Cir.1980), cert. denied, 452 U.S. 961, 101 S.Ct. 3110, 69 L.Ed.2d 972 (1981). The court concluded the transactions had no such impact. Because the Tax Court’s conclusions are drawn “more from its experience ‘with the mainsprings of human conduct’ rather than the application of any legalistic formula,” id. (quoting Commissioner v. Duberstein, 363 U.S. 278, 289-91, 80 S.Ct. 1190, 1198-99, 4 L.Ed.2d 1218 (1960)), this court’s review is limited. The question of economic substance is essentially factual, and the Tax Court’s finding is not to be disturbed unless clearly erroneous. See F.P.P. Enters. v. United States, 830 F.2d 114, 117 (8th Cir.1987) (district court finding that trust arrangement had no economic substance subject to clearly-erroneous review); 26 U.S.C. § 7482(a)(1) (court of appeals reviews Tax Court decisions in same manner as district court decisions). The contractual declarations of intent and unequivocal obligation upon which Massengill relies do not dictate a decision in his favor. See Frank Lyon Co. v. United States, 435 U.S. 561, 573, 98 S.Ct. 1291, 1298, 55 L.Ed.2d 550 (1978) (mere expedient of drafting papers cannot overcome objective economic realities to contrary)." }, { "docid": "6049383", "title": "", "text": "It is of course true that the contractual form of a transaction cannot control the imposition of tax liability when the realities of the transaction show that form does not represent a bona fide and actual agreement. But it is equally true that the form of a contract is the considered and chosen method of expressing the substance of contractual agreements between parties and the dignity of contractual right cannot be judicially set aside simply because a tax benefit results either by design or accident. Form, absent exceptional circumstances, reflects substance. We do not find present in this case any of the traditional exceptional circumstances that justify the piercing of form to impose an exceptional tax liability. This is not a “thin capitalization” case as in Jewell Ridge Coal Corp. v. Commissioner, 4 Cir., 318 F.2d 695. After acquisition, Birmingham was operated on its original capital and the sufficiency of that capital, aided by competent management, restored to the profit column what had once been a successful company. Nor is this a case such as Covey Investment Co. v. United States, 10 Cir., 377 F.2d 403, where long overdue notes were never treated as recognizable indebtedness. In the instant case, repayment followed the corporate ability to repay. Neither the fact that the combined contract value attributed to the stock and notes equaled the original value assigned by taxpayers to the stock alone, nor the fact that the principal purpose of the contract, as far as taxpayers were concerned was to procure needed physical assets supports the court’s inference that irrespective of the contract provisions to the contrary, the notes had no independent significance. The significance of the notes to taxpayers is borne out by the court’s ruling that the notes in the hands of Ovid Birmingham constituted a valid outstanding corporate indebtedness. Had Mr. Birmingham retained the notes for himself or assigned them to some third person, he or that third person could have “forced” the corporation to honor the indebtedness to the personal monetary detriment of taxpayers as controlling shareholders of the Disler Company. Certain it is that the" }, { "docid": "21150612", "title": "", "text": "a difficult matter, compounded by the fact we are dealing with a family-controlled, closely held corporation which was also controlled by the parties with which it contracted. In tax matters, the operations of a family-controlled corporation warrant our careful scrutiny. E.g., Petro-Chem Marketing Co. v. United States, 221 Ct. Cl. 211, 602 F.2d 959 (1979); (decided July 18, 1979); Baird v. Commissioner, 25 T. C. 387, 393 (1955). Plaintiff certainly may choose to organize its business affairs in order to minimize its tax burden. Commissioner v. Tower, 327 U. S. 280, 288 (1946). But once having chosen, it must accept all the tax consequences of its choice. Higgins v. Smith, 308 U. S. 473, 477 (1940); Television Industries, Inc. v. Commissioner, 284 F. 2d 322, 325 (2d Cir. 1960). When the plaintiff realizes that the effects of his business arrangement also entail unanticipated tax consequences, the plaintiff may not then assert that the substance of the arrangement is not what the objective indicia disclose. See Gray v. Powell, 314 U. S. 402, 414 (1961). These parties are all related and the plaintiff and the partnerships had no adverse economic interests. The sub-bottler’s agreements were therefore not the result of an arm’s-length transaction. We can find no reason why this plaintiff should not be bound by the well-accepted requirement of proof of the independent economic reality of an arrangement between parties not dealing at arm’s length. See E. I. du Pont de Nemours and Co. v. United States, supra; Copperhead Coal Co. v. Commissioner, 212 F. 2d 45 (6th Cir. 1959); U. S. Mineral Products Co. v. Commissioner, 52 T. C. 177 (1969); Baird v. Commissioner, supra; Meyer v. Commissioner, 45 B.T.A. 228 (1941). Where, as here, the plaintiff is controlled by the other parties to the transaction the correct method of determination of the amount paid for the franchise, for tax purposes, requires a showing that the arrangement is fair and reasonable, judged by the standards of the transaction if entered into by parties dealing at arm’s length. U. S. Mineral Products Co. v. Commissioner, supra; Baird v. Commissioner, supra." }, { "docid": "1416236", "title": "", "text": "purposes. Frank Lyon Co. v. United States, 435 U.S. 561 (1978); Knetsch v. United States, 364 U.S. 361 (1960); Milbrew v. Commissioner, 710 F.2d 1302 (7th Cir. 1983), affg. a Memorandum Opinion of this Court; Karme v. Commissioner, 73 T.C. 1163 (1980), affd. 673 F.2d 1062 (9th Cir. 1982). This \"sham transaction theory” is one of a number of theories used by the courts to expose \"abusive tax shelters” that masquerade as bona fide business transactions. Taxpayers are generally free to structure their business transactions as they please, though motivated by tax avoidance, provided a non-tax or business purpose is also present. The point is that the substance of a transaction and not the form will control its tax consequences. The courts have, in appropriate circumstances, disregarded, for Federal income tax purposes, a variety of transactions entered into without any economic, commercial, or legal purpose other than the hoped for favorable tax consequences. Where a taxpayer, cognizant of potential tax benefits, enters into a transaction of questionable economic worth, the tests developed under the sham transaction doctrine are applied to determine whether a threshold level of business purpose or economic substance is present. Many of the questioned transactions center around their use of nonrecourse debt which increases the basis of the acquired asset by the face value of the note. Crane v. Commissioner, 331 U.S. 1 (1947). The addition to basis of nonrecourse debt, however, is not unlimited (see text accompanying notes 4 & 5; Estate of Franklin v. Commissioner, 544 F.2d 1045, 1048-1049 (9th Cir. 1976), affg. 64 T.C. 752 (1975)). Deductions for accelerated depreciation and interest expense áre allowable only to the extent of a taxpayer’s adjusted basis in the asset. The main tax advantage flowing from the use of nonrecourse debt is that payment of taxes can be postponed because deductions for depreciation and interest are used to offset income from other sources. In a transaction that has economic reality, however, the deal will usually reach a \"cross-over” point where the depreciation and interest fall to the level of the income generated and begin to turn a" }, { "docid": "3631529", "title": "", "text": "World, Inc. v. Commissioner, 81 T.C. at 202. As we noted in Rice’s Toyota World, however, the presence of a genuine indebtedness supported by an actual investment is strong evidence of economic substance. 81 T.C. at 202. In Packard v. Commissioner, supra, we found that the taxpayers had a business purpose and that they could possibly have benefited economically from the transaction. Nonetheless, we applied the step-transaction theory to recast the transaction so that the form reflected the true substance of the agreement between the parties. Packard v. Commissioner, 85 T.C. at 419-422. In numerous other cases, we have concluded that transactions were totally devoid of economic substance and should be disregarded for tax purposes. We have recently summarized the holdings of such cases by stating: A transaction is without its intended effect for Federal income tax purposes if (1) it is a sham, being a mere paper chase or is otherwise fictitious (Falsetti v. Commissioner, 85 T.C. 332 (1985)), or (2) the transaction is devoid of economic substance consonant with its intended tax effects (Frank Lyon Co. v. United States, 435 U.S. 561, 573 (1978); Knetsch v. United States, 364 U.S. 361, 366 (1960)). The substance of the transaction, not its form, determines its tax consequences. The transaction must have economic substance which is “compelled or encouraged by business or regulatory realities, is imbued with tax-independent considerations, and is not shaped solely by tax avoidance — features that have meaningless labels attached.” Frank Lyon Co. v. United States, 435 U.S. at 583-584; Estate of Thomas v. Commissioner, 84 T.C. 412 (1985); Hilton v. Commissioner, 74 T.C. 305 (1980), affd. per curiam 671 F.2d 316 (9th Cir. 1982). It must be recognized that the tax laws affect the shape of every business transaction. The parties to a transaction are entitled to take into account and to maximize favorable tax results so long as the transaction is compelled or encouraged by non-tax business reasons. Frank Lyon Co. v. United States, 435 U.S. at 580. [James v. Commissioner, 87 T.C. 905, 918 (1986).] Key indicators of presence or a lack of economic" }, { "docid": "3631530", "title": "", "text": "(Frank Lyon Co. v. United States, 435 U.S. 561, 573 (1978); Knetsch v. United States, 364 U.S. 361, 366 (1960)). The substance of the transaction, not its form, determines its tax consequences. The transaction must have economic substance which is “compelled or encouraged by business or regulatory realities, is imbued with tax-independent considerations, and is not shaped solely by tax avoidance — features that have meaningless labels attached.” Frank Lyon Co. v. United States, 435 U.S. at 583-584; Estate of Thomas v. Commissioner, 84 T.C. 412 (1985); Hilton v. Commissioner, 74 T.C. 305 (1980), affd. per curiam 671 F.2d 316 (9th Cir. 1982). It must be recognized that the tax laws affect the shape of every business transaction. The parties to a transaction are entitled to take into account and to maximize favorable tax results so long as the transaction is compelled or encouraged by non-tax business reasons. Frank Lyon Co. v. United States, 435 U.S. at 580. [James v. Commissioner, 87 T.C. 905, 918 (1986).] Key indicators of presence or a lack of economic substance include presence or absence of arm’s-length price negotiations, the relationship between the sales price and fair market value, the structure of financing of the transaction, whether there was a shifting of the benefits and burdens of ownership, and the degree of adherence to contractual terms. See, e.g., Karme v. Commissioner, 73 T.C. 1163 (1980), affd. 673 F.2d 1062 (9th Cir. 1982); Zirker v. Commissioner, 87 T.C. 970 (1986); Helba v. Commissioner, 87 T.C. 983 (1986); James v. Commissioner, supra; Grodt & McKay Realty, Inc. v. Commissioner, 77 T.C. 1221 (1981). In numerous other cases, the focus of the opinion is on the subjective, or “business purpose,” test; i.e., whether a taxpayer had an “actual and honest profit objective” or was subject to limitations on deductions under section 183(a). In Jasionowski v. Commissioner, 66 T.C. 312, 321 (1976), we stated: The legislative history surrounding section 183 indicates that one of the prime motivating factors behind its passage was Congress’ desire to create an objective standard to determine whether a taxpayer was carrying on a business" }, { "docid": "6744081", "title": "", "text": "See Sonnleitner v. Commissioner of Internal Revenue, 598 F.2d at 467 n.9; Dixie Finance Co., Inc. v. United States, 474 F.2d at 505 n.4. In Barran v. Commissioner of Internal Revenue, 334 F.2d 58, 63 (5th Cir. 1964), this Court first applied the “strong proof” rule, as enunciated in Ullman v. Commissioner, 264 F.2d 305 (2d Cir. 1959). In Barran, taxpayer attempted to disavow a contractual allocation to a covenant not to compete. Holding that taxpayer had failed to adduce “strong proof,” this Court refused to disregard the covenant. In Balthrope v. Commissioner of Internal Revenue, 356 F.2d 28, 31 (5th Cir. 1966), this Court reviewed its earlier decision in Bar-ran and stated the rule as adopted therein as “whether the payments allocated to the covenant not to compete are in fact payments for something else.” This Court also noted in Balthrope that courts generally honor parties’ agreements to allocate their tax consequences in a certain manner, but will not do so when the covenant is without “economic reality,” citing Schulz v. Commissioner of Internal Revenue, 294 F.2d 52 (9th Cir. 1961) or was “slipped into a sales contract for tax purposes by one party to the disadvantage of a tax ignorant party.” 356 F.2d at 31, 33. Dixie Finance Company, Inc. v. United States, 474 F.2d 501 (5th Cir. 1973) involved two separate transactions, called the “Stewart” transaction and the “Empire” transaction. In the Stewart transaction, this Court affirmed the Tax Court’s determination that a covenant not to compete, which accounted for $526,150 of the total $650,000 purchase price, and which taxpayers alleged was neither bargained for nor was based upon economic reality, should be disregarded in its entirety. In so holding, the Tax Court found that the agreement did not constitute an enforceable contract not to compete. This Court affirmed the Tax Court’s decision, but found it unnecessary to address the Commissioner’s argument that this Court should adopt the Danielson rule. 474 F.2d at 505 n.4. In the Empire transaction, this Court was called upon to determine which of two contractual allocations should be upheld. The Court noted" }, { "docid": "5343082", "title": "", "text": "percentage of receipts for the additional three years would be reflected in the law firm’s share of the residual value of the picture at the end of the seven-year period. The Tax Court concluded that taxpayer’s law firm parted with “nothing but the bare legal title to their partnership interest, * * * which, so far as this record shows, had no value to anyone. They retained the entire economic substance of their partnership interest and parted with an economic nullity. No sale or exchange of a capital asset within the meaning of section 1221 of the Internal Revenue Code of 1954 took place.” Roth v. Commissioner, 38 T.C. 171, 174 (1962). 1. Taxpayer does not contest the Tax Court’s premise that a transaction lacking economic substance is not entitled to capital gains treatment even though it may satisfy the statute’s formal requirements. Nor could he; the standards of the statute are to be read in the light of Congress’s purpose (Commissioner v. Gillette Motor Transport Co., 364 U.S. 130, 134-135, 80 S.Ct. 1497, 4 L.Ed.2d 1617 (1960)), and must be met genuinely and not merely in form. Commissioner v. P. G. Lake, Inc., 356 U.S. 260, 266-267, 78 S.Ct. 691, 2 L.Ed.2d 743 (1958). We have applied these rules to purported transfers of partnership interests. Haggard v. Wood, 298 F.2d 24, 26-28 (9th Cir. 1961); Trous-dale v. Commissioner, 219 F.2d 563, 566-568 (9th Cir. 1955). See also Holt v. Commissioner, 303 F.2d 687 (9th Cir. 1962). It is taxpayer’s contention that the Tax Court’s factual premise is false, and that the contract of August 9, 1954 did in fact convey substantial economic interests from taxpayer’s law firm to the corporation. The burden of proof as to this ultimate issue rested upon the taxpayer; he was required to establish the existence of the facts prerequisite to capital gains treatment. Cohn v. Commissioner, 226 F.2d 22, 24 (9th Cir. 1955); see also Haggard v. Wood, supra, 298 F.2d at 25. The finding of the Tax Court that the transaction upon which taxpayer relied lacked reality for tax purposes is not to" }, { "docid": "6049382", "title": "", "text": "Commissioner v. Duber-stein, 363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218 where the determinative issue involved gift or income, “primary weight in this area must be given to the conclusions of the trier of fact. * * * ” 3 This we do and also accept the basic facts from which the legal reasoning of the majority opinion of the Tax Court springs to the conclusion that the subject notes, for tax purposes, immediately changed nature when acquired by taxpayers from a genuine corporate indebtedness to a contribution to capital. The heart of the majority opinion is premised on the continuing consideration of $75,000 present throughout the negotiations and the initial and continuing desire of taxpayers to obtain the physical assets of Birmingham. All other circumstances of the transaction are set aside as pure form and it is said to “hold otherwise would be to exalt form over substance.” We disagree and believe the decision of the Tax Court clearly exalts a legal fiction over both the form and substance of the parties’ transaction. It is of course true that the contractual form of a transaction cannot control the imposition of tax liability when the realities of the transaction show that form does not represent a bona fide and actual agreement. But it is equally true that the form of a contract is the considered and chosen method of expressing the substance of contractual agreements between parties and the dignity of contractual right cannot be judicially set aside simply because a tax benefit results either by design or accident. Form, absent exceptional circumstances, reflects substance. We do not find present in this case any of the traditional exceptional circumstances that justify the piercing of form to impose an exceptional tax liability. This is not a “thin capitalization” case as in Jewell Ridge Coal Corp. v. Commissioner, 4 Cir., 318 F.2d 695. After acquisition, Birmingham was operated on its original capital and the sufficiency of that capital, aided by competent management, restored to the profit column what had once been a successful company. Nor is this a case such as" }, { "docid": "7072940", "title": "", "text": "arguing that the terms did not represent economic reality, the Commissioner would be required to litigate the underlying factual circumstances of “countless” agreements. Furthermore, the Commissioner might be required to litigate against both parties to the agreement in order to protect tax revenues. Schatten, 746 F.2d at 322; Danielson, 378 F.2d at 775. If both parties succeeded in their claims, the' Commissioner would lose out on revenue that logically should have come from one of the parties. Sullivan v. United States, 618 F.2d 1001, 1004 (3d Cir.1980). In those situations, the Commissioner is commonly referred to as being “whipsawed.” By' allowing the Commissioner to hold taxpayers to the terms of their agreements, the Danielson rule prevents this “whipsaw” problem. Spector v. Commissioner, 641 F.2d 376, 385 (5th Cir. Unit A. Apr.), cert. denied, 454 U.S. 868, 102 S.Ct. 334, 70 L.Ed.2d 171 (1981). Not only does the Danielson rule provide certainty to the Commissioner, it also provides a higher level of certainty to the taxpayers by maintaining “the reasonably predictable tax consequences” of agreements. Danielson, 378 F.2d at 775. If the other party cannot rely on the agreement to predict tax consequences, then the making of such agreements will be hindered. Schatten, 746 F.2d at 322. “By fostering an increased predictability that the parties’ contractual allocation will control the tax consequences that will attend such agreements, the Daniel-son rule encourages parties to take such considerations into account when forming their bargain.” Sullivan, 618 F.2d at 1004-05. Of course, the taxpayers cannot rely merely on the form of their transaction to predict the tax consequences. The Commissioner is not bound by the form and can look through the form of a taxpayer’s transaction to its substance in determining the proper effect for taxation. E.g., Commissioner v. Court Holding Co., 324 U.S. 331, 334, 65 S.Ct. 707, 708, 89 L.Ed. 981 (1945). The Danielson rule-does, however, increase the predictability of tax results by preventing one party to an agreement from unilaterally reforming the agreement for tax purposes. Petitioner argues that allowing it to reallocate the purchase price in conformity with economic reality" }, { "docid": "21306408", "title": "", "text": "when the Commissioner tries to collect taxes from one party he may, as here, dispute the economic reality of his agreement. When the Commissioner turns to the other party, there will likely be the arguments that the first party, as here, received consideration for bearing the tax burden resulting from the sale and that the covenants did indeed have economic reality. [4] For these reasons we adopt the following rule of law: a party can challenge the tax consequences of his agreement as construed by the Commissioner only by adducing proof which in an action between the parties to the agreement would be admissible to alter that construction or to show its unenforceability because of mistake, undue influence, fraud, duress, etc. [Emphasis supplied.] In a sharp dissent, the Chief Judge of the Circuit (joined by two of his colleagues) disagreed with the majority on the ground that they had disregarded the long line of decisions by the United States Supreme Court to the effect that \"in determining tax liability, taxing authorities must look through form to fact and substance.” The dissent then goes on to remark at 378 F. 2d 780: Although citing no authority, the majority asserts that the obligation to ascertain the substance of a transaction does not apply in this case because here it is one of the parties rather than the Commissioner who seeks to show that the substance of the transaction differed from its form. This proposition does not follow from the cases; in both Helvering v. F. & R. Lazarus, supra, and Helvering v. Tex-Penn Oil Co., supra, the victorious taxpayers had attacked the form in which the transactions were cast, and the Commissioner had relied on the formal arrangement. In a stinging attack on the public policy underlying the majority decision, Chief Judge Staley states at 378 F. 2d 782: The policy basis of the majority seems to be that allowance of the attack on the consideration allocated to the covenant may cause the promisee to \". . . lose a tax advantage it had paid the selling-taxpayers to acquire.” However, as I" }, { "docid": "21150613", "title": "", "text": "parties are all related and the plaintiff and the partnerships had no adverse economic interests. The sub-bottler’s agreements were therefore not the result of an arm’s-length transaction. We can find no reason why this plaintiff should not be bound by the well-accepted requirement of proof of the independent economic reality of an arrangement between parties not dealing at arm’s length. See E. I. du Pont de Nemours and Co. v. United States, supra; Copperhead Coal Co. v. Commissioner, 212 F. 2d 45 (6th Cir. 1959); U. S. Mineral Products Co. v. Commissioner, 52 T. C. 177 (1969); Baird v. Commissioner, supra; Meyer v. Commissioner, 45 B.T.A. 228 (1941). Where, as here, the plaintiff is controlled by the other parties to the transaction the correct method of determination of the amount paid for the franchise, for tax purposes, requires a showing that the arrangement is fair and reasonable, judged by the standards of the transaction if entered into by parties dealing at arm’s length. U. S. Mineral Products Co. v. Commissioner, supra; Baird v. Commissioner, supra. That is, economic realities must control. Furthermore, the trial judge’s ruling is in error on this point because his key finding — that the 20 cent gallonage payment was intended solely to compensate plaintiff for the partnerships’ use of the tangible assets — is based on the testimony of the parties’ accountant as to their subjective intent. This subjective intent testimony is in conflict with objective documentary evidence of the plaintiffs business operation: contemporaneous correspondence, leases, agreements, records and reports, etc. The trial judge dismisses the probative value of these documents but, as we explained above, with documentary evidence the trial judge is in no special position to rule on the probative value of the documents; as such, we are less restrained by the presumption regarding the trial judge’s findings. See Morris v. United States, supra. A review of the documentary evidence in issue is in order. For the years 1958 through 1969, the financial reports prepared by Ernst & Ernst for plaintiff (and for the Montgomery and Andalusia partnerships), and certified by that firm" }, { "docid": "13400957", "title": "", "text": "error in awarding summary judgment to the Government. In Commissioner v. National Alfalfa Dehydrating and Milling Co., 417 U.S. 134, 94 S.Ct. 2129, 40 L.Ed.2d 717 (1974), the Supreme Court stated: [W]hile a taxpayer is free to organize his affairs as he chooses, nevertheless, once having done so, he must accept the tax consequences of his choice whether contemplated or not, and may not enjoy the benefit of some other route he might have chosen to follow but did not. 417 U.S. at 149, 94 S.Ct. 2129 (internal citations omitted); Signet Banking Corp. v. Comm’r, 118 F.3d 239, 241 (4th Cir.1997) (same); see also Frank Lyon Co. v. United States, 435 U.S. 561, 583-84, 98 S.Ct. 1291, 55 L.Ed.2d 550 (1978) (holding that “the Government should honor the allocation of rights and duties effectuated by the parties” when “there is a genuine multiple-party transaction with economic substance ... compelled or encouraged by business or regulatory realities, ... imbued with tax-independent considerations, and ... not shaped solely by tax-avoidance features that have meaningless labels attached”); id. at 584, 98 S.Ct. 1291 (“Expressed another way, ... the form of the transaction adopted by the parties governs for tax purposes.”); accord Gray v. Powell, 314 U.S. 402, 414, 62 S.Ct. 326, 86 L.Ed. 301 (1941) (“The choice of disregarding a deliberately chosen arrangement for conducting business affairs does not lie with the creator of the plan.”). In embracing National Alfalfa’s principle, “courts have established very strict standards,” Furman v. United States, 602 F.Supp. 444, 456 (D.S.C.1984), for a taxpayer who elects “a specific course of action and then when finding himself in an adverse situation [seeks to] extricate himself by applying the age-old theory of substance over form.” Cornelius v. Comm’r, 494 F.2d 465, 471 (5th Cir.1974) (quotation omitted). We have recognized that “[generally, taxpayers are liable for the tax consequences of the transaction they actually execute and may not reap the benefit of recasting the transaction into another one substantially different in economic effect that they might have made.” Estate of Leavitt v. Comm’r, 875 F.2d 420, 423 (4th Cir.1989); see also" }, { "docid": "6744083", "title": "", "text": "that whereas the first allocation was arrived at through arms length, good faith bargaining, nothing occurred in the interval between the execution of the agreement and its subsequent modification that would have reduced the initial value of the covenant to virtually nothing; consequently, the Court concluded that the modification was a sham that bore no relationship to the parties’ true intent, nor to economic reality. Finally, in Sonnleitner v. Commissioner of Internal Revenue, 598 F.2d 464 (5th Cir. 1979), taxpayer offered two arguments as “strong proof” that the consideration allocated to the covenant actually was in payment for the sale of his stock: (1) the covenant had no basis in economic reality because taxpayer in fact was unable to compete with the purchaser; and (2) the covenant was void because it was entered into under economic duress. In addressing taxpayer’s contentions, this Court characterized the threshold question as whether “reasonable men, genuinely concerned with their economic future, might bargain for such an agreement.” 598 F.2d at 467; quoting Schulz v. Commissioner of Internal Revenue, 294 F.2d 52, 55 (9th Cir. 1961). (citation omitted). Finding that taxpayer had failed to adduce strong proof of his contentions, this Court rejected taxpayer’s arguments, and again found it unnecessary to address Danielson. 598 F.2d at 467 n.9. As the foregoing cases indicate, when determining whether a taxpayer has adduced strong proof that a contractual allocation to a covenant not to compete in reality was in payment for something else, a major inquiry is whether the covenant bears “economic reality” to the circumstances surrounding the transaction, i. e., whether the allocation to the covenant bears some relationship to its actual value. In the case sub judice the Tax Court limited its inquiry to this single factor and concluded that because taxpayer could not have liquidated his interest in a partnership of which he never became a member, the form of the transaction as agreed to by the parties lacked economic reality. One difficulty with the Tax Court’s approach is the aforementioned absence of any substantial difference in terms of “economic reality” between a section 736" }, { "docid": "6744082", "title": "", "text": "Revenue, 294 F.2d 52 (9th Cir. 1961) or was “slipped into a sales contract for tax purposes by one party to the disadvantage of a tax ignorant party.” 356 F.2d at 31, 33. Dixie Finance Company, Inc. v. United States, 474 F.2d 501 (5th Cir. 1973) involved two separate transactions, called the “Stewart” transaction and the “Empire” transaction. In the Stewart transaction, this Court affirmed the Tax Court’s determination that a covenant not to compete, which accounted for $526,150 of the total $650,000 purchase price, and which taxpayers alleged was neither bargained for nor was based upon economic reality, should be disregarded in its entirety. In so holding, the Tax Court found that the agreement did not constitute an enforceable contract not to compete. This Court affirmed the Tax Court’s decision, but found it unnecessary to address the Commissioner’s argument that this Court should adopt the Danielson rule. 474 F.2d at 505 n.4. In the Empire transaction, this Court was called upon to determine which of two contractual allocations should be upheld. The Court noted that whereas the first allocation was arrived at through arms length, good faith bargaining, nothing occurred in the interval between the execution of the agreement and its subsequent modification that would have reduced the initial value of the covenant to virtually nothing; consequently, the Court concluded that the modification was a sham that bore no relationship to the parties’ true intent, nor to economic reality. Finally, in Sonnleitner v. Commissioner of Internal Revenue, 598 F.2d 464 (5th Cir. 1979), taxpayer offered two arguments as “strong proof” that the consideration allocated to the covenant actually was in payment for the sale of his stock: (1) the covenant had no basis in economic reality because taxpayer in fact was unable to compete with the purchaser; and (2) the covenant was void because it was entered into under economic duress. In addressing taxpayer’s contentions, this Court characterized the threshold question as whether “reasonable men, genuinely concerned with their economic future, might bargain for such an agreement.” 598 F.2d at 467; quoting Schulz v. Commissioner of Internal Revenue, 294" }, { "docid": "23614661", "title": "", "text": "“exalt[ing] artifice above reality.” Id. at 469-70, 55 S.Ct. at 267-68. Thus, pursuant to Gregory, we must “look beyond the form of [the] transaction” to determine whether it has the “economic substance that [its] form represents,” Kirch-man v. Commissioner, 862 F.2d 1486, 1490 (11th Cir.1989), because regardless of its form, a transaction that is “devoid of economic substance” must be disregarded for tax purposes and “cannot be the basis for a deductible loss.” Lerman, 939 F.2d at 45; accord United States v. Wexler, 31 F.3d 117, 122 (3d Cir.1994). In applying these principles, we must view the transactions “as a whole, and each step, from the commencement ... to the consummation ... is relevant.” Weller v. Commissioner, 270 F.2d 294, 297 (3d Cir.1959); accord Commissioner v. Court Holding Co., 324 U.S. 331, 334, 65 S.Ct. 707, 708, 89 L.Ed. 981 (1945). The inquiry into whether the taxpayer’s transactions had sufficient economic substance to be respected for tax purposes turns on both the “objective economic substance of the transactions” and the “subjective business motivation” behind them. Casebeer v. Commissioner, 909 F.2d 1360, 1363 (9th Cir.1990); accord Lerman, 939 F.2d at 53-54 (noting that sham transaction has been defined as a transaction that “has no business purpose or economic effect other than the creation of tax deductions” and holding that taxpayer was not entitled “to claim ‘losses’ when none in fact were sustained”). However, these distinct aspects of the economic sham inquiry do not constitute discrete prongs of a “rigid two-step analysis,” but rather represent related factors both of which inform the analysis of whether the transaction had sufficient substance, apart from its tax consequences, to be respected for tax purposes. Casebeer, 909 F.2d at 1363; accord James v. Commissioner, 899 F.2d 905, 908-09 (10th Cir.1990); Bose v. Commissioner, 868 F.2d 851, 854 (6th Cir.1989). For the reasons that follow, we find that both the objective analysis of the actual economic consequences of ACM’s transac tions and the subjective analysis of their intended purposes support the Tax Court’s conclusion that ACM’s transactions, did not have sufficient economic substance to be respected for" } ]

[ { "docid": "14518924", "title": "", "text": "a thing” in the showroom, “not one nickel” (24). II Venue in patent infringement suits is governed solely and exclusively by 28 U.S.C. § 1400(b), except where the allegedly infringing defendant is an alien, in which case, 28 U.S.C. § 1391(d), which provides that an alien may be sued in any district, governs. Brunette Machine Works, Ltd. v. Kockum Industries, Inc., 406 U.S. 706, 92 S.Ct. 1936, 32 L.Ed.2d 428 (1972). 28 U.S.C. § 1400(b) provides; Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business. The defendant here, Burris Industries, Inc., is a North Carolina Corporation with its principal place of business in Lincolnton, North Carolina (Young affidavit at 1). In the case of a corporation not subject to 28 U.S.C. § 1391(c), it is a “resident” of only the state of its incorporation. Shaw v. Quincy Mining Co., 145 U.S. 444, 12 S.Ct. 935, 36 L.Ed. 768 (1892); Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 226, 77 S.Ct. 787, 790, 1 L.Ed.2d 786, 789 (1957). Therefore, Burris “resides” only in North Carolina. The test for venue in the Northern District of Illinois must rest on whether Burris has committed acts of infringement and has a regular and established place of business within the district. The district court dismissed the action on the basis that Burris’ activities in the district were insufficient to constitute a regular and established place of business in the district. Having so determined, the court found no need to decide whether Burris committed acts of infringement in the district. We are required to exercise great care in discriminating between the facts in this case and those in precedential cases because the patent infringement venue requirements are “specific and unambiguous” not “to be given a ‘liberal’ construction.” Schnell v. Peter Eckrich & Sons, Inc., 365 U.S. 260, 264, 81 S.Ct. 557, 561, 5 L.Ed.2d 546, 550 (1961); see also, Mid-Continent Metal Products Co. v. Maxon Premix Burner Co.," } ]

[ { "docid": "891704", "title": "", "text": "by proceeding in the manner which the law requires. Id. at (10 How.) 493. Until July 12, 1994, Dart merely had an inchoate exclusive right to the technology now protected by the ’190 patent. In January of 1994, when the attempted sale to the Colorado resident took place Dart had no right to sue for patent infringement because no patent had been granted. Furthermore, Interactive received no telephone calls from Colorado residents regarding the Techno Hunt system between July 12, 1994 and the filing of this lawsuit. Consequently, personal jurisdiction over Interactive is lacking under C.R.S. § 13 — 1—124(l)(b) because no tortious act was committed in Colorado. Alternatively, Interactive requests transfer of venue under 28 U.S.C. § 1406. In a patent infringement case, venue is governed by 28 U.S.C. § 1400(b) which provides that venue is appropriate in the judicial district 1) where the defendant resides or 2) where the defendant has committed acts of infringement and has a regular and established place of business. Before 1988, a corporate defendant in a patent infringement action was deemed to reside only in the state of incorporation. See Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957). In 1988 as part of the Judicial Improvements and Access to Justice Act, Pub.L. No. 100-702, tit. X, § 1013(a), 102 Stat. 4642, 4669 (1988), the general federal venue statute was amended. 28 U.S.C. § 1391. The amended § 1391(c) reads, “For purposes of this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.” 28 U.S.C. § 1391(c). The chapter referenced includes § 1400(b). Having determined that I lack personal jurisdiction over Interactive, it follows that venue is improper in this judicial district. Pursuant to 28 U.S.C. § 1406(a), I conclude that it would be in the interests of justice to transfer this case to the Western District of Washington where it appears that both venue and personal jurisdiction are proper under 28 U.S.C." }, { "docid": "16703619", "title": "", "text": "outside of California, both Illumina and Life have litigated extensively in fora other than California. Indeed, Illumina has been involved in litigating as many cases in Delaware as it has in California. (D.I. 187 at 5; D.I. 188, ex. N) The remaining Illumina litigations have been scattered throughout the country, including Massachusetts, Washington and Wisconsin. (Id.) Life has also been involved in litigations throughout the country, with nearly half of those litigations occurring in Delaware, Maryland and New York. (D.I. 187 at 5; D.I. 188, ex. I) In the past, both Illumina and Life have opposed motions to transfer venue to the Northern District of California. (D.1.187 at 5, citing cases). III. STANDARD OF REVIEW Since the Act of 1897, when Congress first enacted what is now 28 U.S.C. § 1400(b), any civil action for patent infringement could be brought in the judicial district in which the defendant was incorporated. Indeed, until 1990, the words “inhabitant” (used prior to 1948) and “resident” (used since 1948), as those words relate to corporate venue in patent infringement cases, were limited to “the state of incorporation only.” Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 226, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957); see also VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574,1578 (Fed.Cir.1990). In 1990, the Federal Circuit in VE Holding interpreted the 1988 amendment to the general venue statute, 28 U.S.C. § 1391(c), as supplementing the specific provisions of § 1400(b). More specifically, § 1391 was amended to broaden the general venue provision for corporations: (c) For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. (Emphasis added) The Federal Circuit held that the emphasized language above clearly indicated that § 1391(c), on its face, applied to § 1400(b), “and thus redefine[d] the meaning of the term ‘resides’ in that section.” 917 F.2d at 1578. Thus, as recognized by the Federal Circuit, “[v]enue, which connotes locality, serves the purpose" }, { "docid": "19629283", "title": "", "text": "otherwise provided by law\" and \"[f]or all venue purposes,\" a corporation \"shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court's personal jurisdiction with respect to the civil action in question.\" §§ 1391(a), (c). The issue in this case is whether that definition supplants the definition announced in Fourco and allows a plaintiff to bring a patent infringement lawsuit against a corporation in any district in which the corporation is subject to personal jurisdiction. We conclude that the amendments to § 1391 did not modify the meaning of § 1400(b) as interpreted by Fourco . We therefore hold that a domestic corporation \"resides\" only in its State of incorporation for purposes of the patent venue statute. I Petitioner, which is organized under Indiana law and headquartered in Indiana, manufactures flavored drink mixes. Respondent, which is organized under Delaware law and has its principal place of business in Illinois, is a competitor in the same market. As relevant here, respondent sued petitioner in the District Court for the District of Delaware, alleging that petitioner's products infringed one of respondent's patents. Although petitioner is not registered to conduct business in Delaware and has no meaningful local presence there, it does ship the allegedly infringing products into the State. Petitioner moved to dismiss the case or transfer venue to the District Court for the Southern District of Indiana, arguing that venue was improper in Delaware. See 28 U.S.C. § 1406. Citing Fourco 's holding that a corporation resides only in its State of incorporation for patent infringement suits, petitioner argued that it did not \"resid[e]\" in Delaware under the first clause of § 1400(b). It further argued that it had no \"regular and established place of business\" in Delaware under the second clause of § 1400(b). Relying on Circuit precedent, the District Court rejected these arguments, 2015 WL 5613160 (D.Del., Sept. 24, 2015), and the Federal Circuit denied a petition for a writ of mandamus, In re TC Heartland LLC, 821 F.3d 1338 (2016). The Federal Circuit concluded that subsequent statutory amendments" }, { "docid": "19629291", "title": "", "text": "See ibid. (The use of \"resides\" \"negat[es] any intention to make corporations suable, in patent infringement cases, where they are merely 'doing business,' because those synonymous words [\"inhabitant\" and \"resident\"] mean domicile and, in respect of corporations, mean the state of incorporation only\"). B This landscape remained effectively unchanged until 1988, when Congress amended the general venue statute, § 1391(c), to provide that \"[f]or purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.\" Judicial Improvements and Access to Justice Act, § 1013(a), 102 Stat. 4669. The Federal Circuit in VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574 (1990), announced its view of the effect of this amendment on the meaning of the patent venue statute. The court reasoned that the phrase \"[f]or purposes of venue under this chapter\" was \"exact and classic language of incorporation,\" id., at 1579, and that § 1391(c) accordingly established the definition for all other venue statutes under the same \"chapter.\" Id., at 1580. Because § 1400(b) fell within the relevant chapter, the Federal Circuit concluded that § 1391(c), \"on its face,\" \"clearly applies to § 1400(b), and thus redefines the meaning of the term 'resides' in that section.\" Id., at 1578. Following VE Holding, no new developments occurred until Congress adopted the current version of § 1391 in 2011 (again leaving § 1400(b) unaltered). See Federal Courts Jurisdiction and Venue Clarification Act of 2011, § 202, 125 Stat. 763. Section 1391(a) now provides that, \"[e]xcept as otherwise provided by law,\" \"this section shall govern the venue of all civil actions brought in district courts of the United States.\" And § 1391(c)(2), in turn, provides that, \"[f]or all venue purposes,\" certain entities, \"whether or not incorporated, shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court's personal jurisdiction with respect to the civil action in question.\" In its decision below, the Federal Circuit reaffirmed VE" }, { "docid": "22557974", "title": "", "text": "Mr. Justice Whittaker delivered the opinion of the Court. The question presented is whether 28 U. S. C. § 1400 (b) is the sole and exclusive provision governing venue in patent infringement actions, or whether that section is supplemented by 28 U. S. C. § 1391 (c). Section 1400 is titled “Patents and copyrights,” and subsection (b) reads: “(b) Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.” Section 1391 is titled “Venue generally,” and subsection (c) reads: “(c) A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.” Petitioner, Fourco Glass Company, a West Virginia corporation, was sued for patent infringement in the Southern District of New York. It moved to dismiss for lack of venue, because, although it had a regularly established place of business in the district of suit, there was no showing that it had committed any of the alleged acts of infringement there. The District Court held that there had been no showing of any acts of infringement in the district of suit and that venue in patent infringement actions is solely and exclusively governed by § 1400 (b), as a special and specific venue statute applicable to that species of litigation. It accordingly granted the motion and dismissed the action. 133 F. Supp. 531. The Court of Appeals, without passing on the District Court’s ruling that there had been no showing of acts of infringement in the district of suit, reversed, 233 F. 2d 885, 886, holding that proper construction “requires . . . the insertion in” § 1400 (b) “of the definition of corporate residence from” § 1391 (c), and that the two sections, when thus “read together,” mean “that this defendant maybe sued in New York, where it 'is doing business.' ” We granted certiorari because of" }, { "docid": "6147471", "title": "", "text": "was filed after the district court had reached its decision of infringement, Hoover charged Mr. Holden with personal liability for infringement and inducement to infringe the Hoover patents. Mr. Holden was the president, chief executive officer, and principal shareholder of Custom. The complaint alleged that he made all major decisions concerning the business involved in this lawsuit; this allegation is accepted as true for venue purposes. Venue is based on the facts alleged in the well-pleaded complaint. See Dody v. Brown, 659 F.Supp. 541, 544 n. 2 (W.D.Mo.1987) (“in deciding the question of the defendants’ contacts with this district for venue purposes, the Court will accept as true the facts pleaded in plaintiffs’ complaint”); McGhan v. F.C. Hayer Co., 84 F.Supp. 540, 541 (D.Minn.1949) (the plaintiffs need plead only “ultimate facts that sufficiently allege venue so as to sustain the Court’s jurisdiction”). The district court denied Mr. Holden’s motion to dismiss the Second Amended Complaint, ruling that sufficient facts were alleged to support personal jurisdiction and venue. Mr. Holden does not contest personal jurisdiction, but argues that venue is improper. Venue in patent infringement trials is proper in any judicial district “where the defendant resides or where the defendant has committed acts of infringement and has a regular and established place of business.” 28 U.S.C. § 1400(b). As discussed in VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 16 USPQ2d 1614 (Fed.Cir.1990), cert. denied, 499 U.S. 922, 111 S.Ct. 1315, 113 L.Ed.2d 248 (1991), for venue purposes the residence of corporate defendants in patent infringement actions is governed by 28 U.S.C. § 1391(c), as amended in 1988. However, venue as to corporate employees charged with personal liability for acts taken as individuals, not as the alter ego of the corporation, does not flow automatically to forums in which venue is proper as to the corporation. Venue requirements exist for the benefit of defendants, VE Holding, 917 F.2d at 1576, 16 USPQ2d at 1615. When the cause of action is personal to the individual defendant, the venue requirement must be met as to that defendant. 1A(2) J. Moore" }, { "docid": "3452330", "title": "", "text": "states to provide a forum for efficiently litigating a plaintiffs cause of action,” which includes patent litigation. Id. at 1370-1371 (citations omitted). The burdens on Life + Gear are not enough to overcome the interests of the state and OCI. Though travel is a burden, it is not generally a reason to find jurisdiction unreasonable. Beverly Hills Fan, 21 F.3d at 1569. II. Venue Turning to Life + Gear’s venue challenge, I am unpersuaded that venue in this district would be improper. As with the question of personal jurisdiction, Federal Circuit precedent binds my decision on the issue of venue. Venue, like personal jurisdiction, is “intimately involved with the substance of the patent laws.” Electronics, 340 F.3d at 1348 (quoting Akro Corp. v. Luker, 45 F.3d 1541, 1543 (Fed.Cir.1995) for the proposition that Federal Circuit law applies to the issue of personal jurisdiction). Whether venue is proper requires interpretation of 28 U.S.C. § 1400(b), which is specifically a patent venue statute. The Federal Circuit’s interpretation of § 1400(b), then, is controlling. The 1988 Amendment to 28 U.S.C. § 1391(c) expanded the definition of “resides in” for corporate defendants to include “any judicial district in which [a corporation] is subject to personal jurisdiction.” 28 U.S.C. § 1391(c). The Federal Circuit, thereafter, read the expanded definition of “resides” into its interpretation of § 1400(b). VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1580 (Fed.Cir.1990), cert. denied 499 U.S. 922, 111 S.Ct. 1315, 113 L.Ed.2d 248 (1991). Therefore, as OCI correctly states, “the venue point is a non-issue” because “[v]enue in a patent action against a corporate defendant exists wherever there is personal jurisdiction.” Trintec, 395 F.3d at 1280; see also Braden Shielding Systems, a Unit of Jason Inc. v. Shielding Dynamics of Texas, 812 F.Supp. 819, 821 (N.D.Ill.1992). III. For the reasons discussed above, defendant Life + Gear’s motion to dismiss pursuant to Rule 12(b)(2) and (3) is denied. . Two other defendants named in the caption, Ready America, Inc. and Trademark Global, have been dismissed from the case. . OCI incorrectly identified Life + Gear as a \"California" }, { "docid": "9767945", "title": "", "text": "the district court. Hapaniewski v. City of Chicago Heights, 883 F.2d 576, 579 (7th Cir.1989), cert. denied, 493 U.S. 1071, 110 S.Ct. 1116, 107 L.Ed.2d 1023 (1990). Defendant asserts that personal jurisdiction and venue are proper in the United States District Court for the Eastern District of Michigan and that the court should therefore transfer the case to that court. The court agrees. Venue for patent infringement cases is governed by 28 U.S.C. § 1400(b) which states: Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business. Thus, the case may be brought where Piece Maker resides, Michigan. Furthermore, Piece Maker is a corporation, and the 1988 amendment to 28 U.S.C. § 1391(c) reads in pertinent part: For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. In VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574 (Fed.Cir.1990), cert. denied, 499 U.S. 922, 111 S.Ct. 1315, 113 L.Ed.2d 248 (1991), the court held that the 1988 amendment to 28 U.S.C. § 1391(c) also redefined “resides” in 28 U.S.C. § 1400(b), and concluded: [T]he first test for venue under § 1400(b) with respect to a defendant that is a corporation, in light of the 1988 amendment to § 1391(c), is whether the defendant was subject to personal jurisdiction in the district of suit at the time the action was commenced. Id. at 1584. This redefinition of “resides” in 28 U.S.C. § 1400(b) effectively renders § 1400(b) redundant to § 1391(c) with respect to a patent infringement defendant that is a corporation. Thus, because Piece Maker is a corporation, whether venue is proper in the Eastern District of Michigan for this patent infringement case turns solely on whether Piece Maker is subject to personal jurisdiction in the Eastern District of Michigan. The court cannot conceive of any reason" }, { "docid": "8836000", "title": "", "text": "on the “substantial activity” test of the long-arm statute. The Agreement called for Defendant Ciba Seeds and Defendant MPSI as managing general partner of Agrigenetics, L.P. to develop pest tolerant com seed. Plaintiff asserts that this seed infringes the ’799 patent. While the Agreement was signed three months prior to the issuance of the patent to Plaintiff, the infringement, if at all, occurred after issuance of the patent. For the reasons stated herein, the court finds that jurisdiction over Defendant MPSI is proper under the North Carolina long-arm statute. For the reasons stated herein, Defendant MPSI’s motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) will be denied. B. Rule 12(b)(3) — Lack of Venue When an objection to venue has been raised under Rule 12(b)(3), the burden lies with the plaintiff to establish that venue is proper in the judicial district in which the plaintiff has brought the action. Bartholomew v. Virginia Chiropractors Ass’n, Inc., 612 F.2d 812, 817 (4th Cir.1979), cert. denied, 446 U.S. 938, 100 S.Ct. 2158, 64 L.Ed.2d 791 (1980). Venue in patent and copyright cases is governed by 28 U.S.C. § 1400. The Federal Circuit, in VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1584 (Fed.Cir.1990), cert. denied, 499 U.S. 922, 111 S.Ct. 1315, 113 L.Ed.2d 248 (1991), held that the test for venue under section 1400(b) with respect to a defendant that is a corporation, in light of the 1988 amendment to 28 U.S.C. § 1391(c), is whether the defendant was subject to personal jurisdiction in the district of suit at the time the action was commenced. 28 U.S.C. §§ 1391(c) & 1400(b). Because the court has determined that Defendant MPSI is subject to personal jurisdiction in this district, venue is also proper. For the reasons stated herein, Defendant MPSI’s motion to dismiss for lack of venue pursuant to Rule 12(b)(3) will be denied. C. Rule 12(b)(5) — Insufficiency of Service of Process In order to serve Defendant MPSI, Plaintiff served a copy of the summons and complaint on CT Corporation System, the registered agent of Mycogen Corp." }, { "docid": "8836001", "title": "", "text": "791 (1980). Venue in patent and copyright cases is governed by 28 U.S.C. § 1400. The Federal Circuit, in VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1584 (Fed.Cir.1990), cert. denied, 499 U.S. 922, 111 S.Ct. 1315, 113 L.Ed.2d 248 (1991), held that the test for venue under section 1400(b) with respect to a defendant that is a corporation, in light of the 1988 amendment to 28 U.S.C. § 1391(c), is whether the defendant was subject to personal jurisdiction in the district of suit at the time the action was commenced. 28 U.S.C. §§ 1391(c) & 1400(b). Because the court has determined that Defendant MPSI is subject to personal jurisdiction in this district, venue is also proper. For the reasons stated herein, Defendant MPSI’s motion to dismiss for lack of venue pursuant to Rule 12(b)(3) will be denied. C. Rule 12(b)(5) — Insufficiency of Service of Process In order to serve Defendant MPSI, Plaintiff served a copy of the summons and complaint on CT Corporation System, the registered agent of Mycogen Corp. Mycogen C.orp. is a completely separate entity from Defendant MPSI, and CT Corporation System is not authorized to receive process on behalf of Defendant MPSI. Thus, Defendant MPSI contends that Plaintiff has not properly served Defendant MPSI. A motion under Rule 12(b)(5) is the appropriate means for challenging the manner or sufficiency of service of process. Chilicky v. Schweiker, 796 F.2d 1131, 1136 (9th Cir.1986), rev’d on other grounds, 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988); Orbis Marine Enter., Inc. v. TEC Marine Lines, Ltd., 692 F.Supp. 280, 281 n. 3 (S.D.N.Y.1988). The plaintiff bears the burden of establishing that service of process has been accomplished in a manner that complies with Rule 4. Montgomery, Zukerman, Davis, Inc. v. Diepenbrock, 698 F.Supp. 1453, 1459 (S.D.Ind.1988). A corporate defendant that fails to receive actual notice of a claim against it suffers no due process violations so long as the notice given was of a nature reasonably calculated to provide actual notice and an opportunity to defend. Capstar Corp. v. Pristine Indus., Inc., 768" }, { "docid": "2194156", "title": "", "text": "(1988), which provides that “[a]ny civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.” Shielding Dynamics clearly has no “regular and established place of business” in the Northern District of Illinois, a point that is not contested by Braden Shielding. The question, therefore, is whether, for § 1400(b) purposes, Shielding Dynamics “resides” in the Northern District of Illinois. Not surprisingly, “resides” turns out to be a term of art in the venue game. Shielding Dynamics argues that it resides in Texas, where it is incorporated, correctly citing Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957), as authority for this construction. It further argues that § 1400(b) controls venue in patent infringement cases exclusive of the general venue provision for federal civil actions, 28 U.S.C. § 1391(c) (1988). As amended in 1988, § 1391(c) states: “For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced_” (emphasis added). Read next to § 1400(b) — because that section is part of chapter 87 of title 28, too, § 1391(c) expands the definition of resides. To escape this breadth, Shielding Dynamics points to Fourco, in which the Supreme Court held that § 1400(b) alone governs venue in patent infringement actions. Fourco, 353 U.S. at 229, 77 S.Ct. at 791. Shielding Dynamics cites Dual Manufacturing & Engineering, Inc. v. Burris Industries, Inc., 531 F.2d 1382 (7th Cir.1976), and Joslyn Manufacturing Co. v. Amenace Corp., 729 F.Supp. 1219 (N.D.Ill.1990), as supporting the same rule. Shielding Dynamics also contends that defending itself against this suit in the Northern District of Illinois constitutes an unfair burden, most significantly because “[documents would be difficult, if not impossible to obtain, and necessary witnesses could not be compelled to testify.” Reply at 3. II. A. The Court of Appeals for" }, { "docid": "2194166", "title": "", "text": "for the purposes of 28 U.S.C. § 1400(b). The complaint adequately states a claim upon which relief could be granted. Accordingly, the motion to dismiss is denied. It is so ordered. . VE Holding was decided on October 24, 1990, Joslyn on February 6, 1990. . In Stonite Products Co. v. Melvin Lloyd Co., 315 U.S. 561, 62 S.Ct. 780, 86 L.Ed. 1026 (1942), the Court held that “the venue statute applying specifically to patent infringement litigation,” 28 U.S.C. § 109 (1940), was '\"the exclusive provision controlling venue in patent infringement proceedings’” and ‘\"that Congress did not intend [§ 109] to dovetail with the general provisions relating to the venue of civil suits’ ” found at 28 U.S.C. § 113 (1940). Fourco, 353 U.S. at 224-25, 77 S.Ct. at 785 (quoting Stonite, 315 U.S. at 563, 566, 62 S.Ct. at 781, 782). . It could at least be argued that the expansive reading of \"resides” in § 1400(b) renders the second prong of the section redundant, because any defendant who “has committed acts of infringement and has a regular and established place of business” will necessarily be subject to personal jurisdiction in that judicial district. The amended § 1391(c), however, only changes the definition of resides in § 1400(b) when the defendant is a corporation. \"[T]hus the second test for venue [under § 1400(b) ] remains operative with respect to defendants that are not corporations.” VE Holding, 917 F.2d at 1580 n. 17. . The Illinois long-arm statute clearly reaches Shielding Dynamics. Ill.Ann.Stat. ch. 110, para. 2-209(a)(l) (Smith-Hurd 1983 & 1992 Supp.), states in relevant part: 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 in an individual, his or her 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: (1) The transaction of any business within this State[.] Shielding Dynamics' admission that it contracted to and subsequently did build the" }, { "docid": "9767946", "title": "", "text": "the action is commenced. In VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574 (Fed.Cir.1990), cert. denied, 499 U.S. 922, 111 S.Ct. 1315, 113 L.Ed.2d 248 (1991), the court held that the 1988 amendment to 28 U.S.C. § 1391(c) also redefined “resides” in 28 U.S.C. § 1400(b), and concluded: [T]he first test for venue under § 1400(b) with respect to a defendant that is a corporation, in light of the 1988 amendment to § 1391(c), is whether the defendant was subject to personal jurisdiction in the district of suit at the time the action was commenced. Id. at 1584. This redefinition of “resides” in 28 U.S.C. § 1400(b) effectively renders § 1400(b) redundant to § 1391(c) with respect to a patent infringement defendant that is a corporation. Thus, because Piece Maker is a corporation, whether venue is proper in the Eastern District of Michigan for this patent infringement case turns solely on whether Piece Maker is subject to personal jurisdiction in the Eastern District of Michigan. The court cannot conceive of any reason as to why Piece Maker would not be subject to personal jurisdiction in Michigan. The facts recited supra clearly indicate that Piece Maker would be subject to personal jurisdiction in Michigan as Piece Maker resides in Michigan and purportedly conducts most of its business within the territorial limits of that State. Clearly, Carbide could have instituted the present suit in the Eastern District of Michigan. Therefore, in the interest of justice and in accordance with the purpose of 28 U.S.C. § 1406, the court grants defendant’s Motion to Transfer to the United States District Court for the Eastern District of Michigan pursuant to 28 U.S.C. § 1406(a). CONCLUSION For all of the foregoing reasons, defendant’s Motion to Dismiss is DENIED, but defendant’s Motion to Transfer to the United States District Court for the Eastern District of Michigan filed on February 4, 1994, is GRANTED. . Fed.R.Civ.P. 4 as amended April 22, 1993 and effective December 1, 1993, states in relevant part: le) Unless otherwise provided by federal law, service upon an individual from whom a" }, { "docid": "19629282", "title": "", "text": "Justice THOMAS delivered the opinion of the Court. The question presented in this case is where proper venue lies for a patent infringement lawsuit brought against a domestic corporation. The patent venue statute, 28 U.S.C. § 1400(b), provides that \"[a]ny civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.\" In Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 226, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957), this Court concluded that for purposes of § 1400(b) a domestic corporation \"resides\" only in its State of incorporation. In reaching that conclusion, the Court rejected the argument that § 1400(b) incorporates the broader definition of corporate \"residence\" contained in the general venue statute, 28 U.S.C. § 1391(c). 353 U.S., at 228, 77 S.Ct. 787. Congress has not amended § 1400(b) since this Court construed it in Fourco, but it has amended § 1391 twice. Section 1391 now provides that, \"[e]xcept as otherwise provided by law\" and \"[f]or all venue purposes,\" a corporation \"shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court's personal jurisdiction with respect to the civil action in question.\" §§ 1391(a), (c). The issue in this case is whether that definition supplants the definition announced in Fourco and allows a plaintiff to bring a patent infringement lawsuit against a corporation in any district in which the corporation is subject to personal jurisdiction. We conclude that the amendments to § 1391 did not modify the meaning of § 1400(b) as interpreted by Fourco . We therefore hold that a domestic corporation \"resides\" only in its State of incorporation for purposes of the patent venue statute. I Petitioner, which is organized under Indiana law and headquartered in Indiana, manufactures flavored drink mixes. Respondent, which is organized under Delaware law and has its principal place of business in Illinois, is a competitor in the same market. As relevant here, respondent sued petitioner in the District" }, { "docid": "4976595", "title": "", "text": "not necessary to consider at this point whether the corporate entity should be disregarded for venue purposes. However, plaintiff also argues that venue in this district is proper for Lares under the first alternative of § 1400(b), because the corporation, which “resides” in this district for purposes of the statute, is his alter ego. In VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1578 (Fed.Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1315, 113 L.Ed.2d 248 (1991), the Court held that the 1988 amendment to 28 U.S.C. § 1391(c), the general venue statute for corporations, applied to § 1400(b), thus redefining the meaning of the term “resides” under that section. The amended Section 1391(c) states: For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. Because § 1400(b) is part of the same chapter as § 1391(c), the Court concluded that the amendment applied to § 1400(b) despite the Supreme Court’s ruling in Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957) that the earlier version of § 1391(c) did not affect § 1400(b). VE Holding Corp., 917 F.2d at 1579. Therefore, under the patent venue statute, a corporation “resides” in every place in which it is subject to personal jurisdiction at the time the action is commenced. Id. at 1584. There appears to be no dispute that Lares Research is subject to jurisdiction here, and so it “resides” in the Southern District of New York for venue purposes. Plaintiff must then establish that Lares’ relationship with the corporation justifies piercing’ the corporate veil and imputing the corporation’s “residence” here to him. We have found that plaintiff has made an adequate prima facie showing that the court may “pierce the corporate veil” for jurisdictional purposes, and we find now that this showing is adequate to withstand the current motion to dismiss for improper venue as well. E. Jurisdictional Discovery Plaintiff has made" }, { "docid": "4976594", "title": "", "text": "further argues that venue is proper for Lares in this district because it is proper for Lares Research, which should be considered defendant’s “alter ego.” It is appropriate to pierce the corporate veil in order to establish venue under the patent venue statutes. See Minnesota Mining, 757 F.2d at 1265; Max Daetwyler Corp. v. Imput Graphics, Inc., 541 F.Supp. 115, 117 (E.D.Pa.1982); Kierulff Assoc. v. Luria Brothers & Co., 240 F.Supp. 640, 642 (S.D.N.Y.1965). First, plaintiff argues that defendant can satisfy the second alternative for venue under § 1400(b) because Lares Research has committed acts of infringement in New York and has a regular and established place of business here. However, plaintiff has failed to allege that Lares Research has a “regular and established place of business” in New York. There is simply nothing in the Complaint which asserts that Lares Research carries on business on a permanent basis in a physical location over which it has some control. Because the corporation does not satisfy the second alternative of the patent venue statute, it is not necessary to consider at this point whether the corporate entity should be disregarded for venue purposes. However, plaintiff also argues that venue in this district is proper for Lares under the first alternative of § 1400(b), because the corporation, which “resides” in this district for purposes of the statute, is his alter ego. In VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1578 (Fed.Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1315, 113 L.Ed.2d 248 (1991), the Court held that the 1988 amendment to 28 U.S.C. § 1391(c), the general venue statute for corporations, applied to § 1400(b), thus redefining the meaning of the term “resides” under that section. The amended Section 1391(c) states: For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. Because § 1400(b) is part of the same chapter as § 1391(c), the Court concluded that the amendment applied to" }, { "docid": "14060928", "title": "", "text": "Pilates, Inc. v. Pilates Inst., Inc., 891 F.Supp. 175, 178 (S.D.N.Y.1995) However, “[i]n deciding a pretrial motion to dismiss for lack of personal jurisdiction a district court has considerable procedural leeway.” Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981). At this time, Sprint Corporation’s motion to dismiss is denied so that Aerotel can take jurisdictional discovery. Such discovery should be directed to ascertaining the precise level of interrelatedness between Sprint Corporation and Sprint Spectrum/Sprint Communications. After such discovery takes place, Sprint Corporation may renew its motion to dismiss for lack of personal jurisdiction if it deems it appropriate. B. Venue Venue in suits for patent infringement is governed solely and exclusively by 28 U.S.C. § 1400(b). See Stonite Prod. Co. v. Melvin Lloyd Co., 315 U.S. 561, 563, 62 S.Ct. 780, 86 L.Ed. 1026 (1942). That statute provides: “Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.” Where a corporation resides is governed by 28 U.S.C. § 1391(c) which reads: (c) For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. For purposes of this portion of the Opinion and Order, it will be assumed that Sprint Corporation is subject to personal jurisdiction in New York and, therefore, that the New York venue is also proper as to it. Even though venue in the Southern District of New York is proper as to the remaining defendants and is assumed proper as to Sprint Corporation, the defendants seek to transfer venue to the District of Kansas. It is to this request that I now turn. C. Motion to Transfer i.First Filed Rule “Where two courts have concurrent jurisdiction over an action involving the same parties and issues, courts will follow a ‘first filed’ rule whereby the court which first has possession of the action" }, { "docid": "16783182", "title": "", "text": "district court may transfer any civil action to any other district or division where it might have been brought.” Thus, a decision whether to transfer an action to another district is committed to the district court’s sound discretion, Southern Ry. Co. v. Madden, 235 F.2d 198, 201 (4th Cir.1956), cert. denied, 352 U.S. 953, 77 S.Ct. 328, 1 L.Ed.2d 244 (1956), and, in considering whether to transfer venue, a district court must make two inquiries: (1) whether the claims might have been brought in the transferee forum, and (2) whether the interest of justice and convenience of the parties and witnesses justify transfer to that forum. In this action, the resolution of these two inquiries warrants transfer to the Central District of California of all claims against all defendants except MCSC. 1. Might An Action Against MEI, MCSC And The Microtek Entities Have Been Brought In The Central District Of California? In order to demonstrate that an action might have been brought in a proposed transferee district, a movant must establish that both venue and jurisdiction with respect to each defendant is proper in the transferee district. L.G. Elecs. Inc. v. Advance Creative Computer Corp., 131 F.Supp.2d 804, 812 (E.D.Va.2001). The venue provision for patent infringement actions states, in relevant part, “[a]ny civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of busi ness.” 28 U.S.C. § 1400(b) (2003). The definition of “residence” is found in § 1391, which provides, in relevant part, “[f]or purposes of venue ... a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.” 28 U.S.C. § 1391(c) (2003). “Therefore, if a corporation ‘resides’ in a district within the meaning of § 1391(c), venue is proper in that district within the meaning of § 1400(b)” and “the tests for venue and personal jurisdiction are interchangeable for corporations.” L.G. Elecs., 131 F.Supp.2d at 809-10." }, { "docid": "6147472", "title": "", "text": "argues that venue is improper. Venue in patent infringement trials is proper in any judicial district “where the defendant resides or where the defendant has committed acts of infringement and has a regular and established place of business.” 28 U.S.C. § 1400(b). As discussed in VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 16 USPQ2d 1614 (Fed.Cir.1990), cert. denied, 499 U.S. 922, 111 S.Ct. 1315, 113 L.Ed.2d 248 (1991), for venue purposes the residence of corporate defendants in patent infringement actions is governed by 28 U.S.C. § 1391(c), as amended in 1988. However, venue as to corporate employees charged with personal liability for acts taken as individuals, not as the alter ego of the corporation, does not flow automatically to forums in which venue is proper as to the corporation. Venue requirements exist for the benefit of defendants, VE Holding, 917 F.2d at 1576, 16 USPQ2d at 1615. When the cause of action is personal to the individual defendant, the venue requirement must be met as to that defendant. 1A(2) J. Moore et ah, Moore’s Federal Practice ¶ 0.340 (2d ed.1995). In comparison, venue for personal liability of a corporate officer/owner for acts of infringement by the corporation, whether or not the facts support piercing the corporate veil, may reasonably be based on the venue provisions for the corporation, 28 U.S.C. §§ 1400(b) and 1391(c). See Minnesota Mining & Mfg. Co. v. Eco Chem, Inc., 757 F.2d 1256, 1265, 225 USPQ 350, 356 (Fed.Cir.1985) (“The precedents establish that a court which has jurisdiction over a corporation has jurisdiction over its alter egos.”). The district court, discussing Mr. Holden’s ease, did not distinguish between the charges of inducement to infringe and direct infringement, and did not require that the corporate veil be penetrated. However, the allegations of the complaint with respect to Mr. Holden’s ownership, control, and active management of the corporation provide sufficient basis for finding that venue was proper under §§ 1400(b) and 1391(e). We have given weight to the convenience of parties and courts in this subsidiary action, wherein the issues of infringement were tried" }, { "docid": "16783183", "title": "", "text": "jurisdiction with respect to each defendant is proper in the transferee district. L.G. Elecs. Inc. v. Advance Creative Computer Corp., 131 F.Supp.2d 804, 812 (E.D.Va.2001). The venue provision for patent infringement actions states, in relevant part, “[a]ny civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of busi ness.” 28 U.S.C. § 1400(b) (2003). The definition of “residence” is found in § 1391, which provides, in relevant part, “[f]or purposes of venue ... a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.” 28 U.S.C. § 1391(c) (2003). “Therefore, if a corporation ‘resides’ in a district within the meaning of § 1391(c), venue is proper in that district within the meaning of § 1400(b)” and “the tests for venue and personal jurisdiction are interchangeable for corporations.” L.G. Elecs., 131 F.Supp.2d at 809-10. As a preliminary matter, the Kohs have not contested that venue and jurisdiction are proper in the Central District of California as to MEI and each of the Microtek Defendants and, as earlier indicated, MEI and the Microtek entities each carry on substantial business activity in that district. MLI is incorporated in California, has its principal place of business in California, and has admitted to engaging in the allegedly infringing activities in California. MIDSDI has contested jurisdiction in this district because it does not engage in infringing activities anywhere in the United States and because it has no place of business in Virginia and engages in only insignificant Virginia sales activity, but MIDSDI admits that its secondary place of business is in the transferee district. MEI has two retail stores in California where it admittedly sells Image-Deck units. Because Mil has not yet been properly served, it suffices to note that, although Mil manufactures the Ima-geDeek abroad, it directs that product into the United States only through its subsidiary, MLI, and only in California. See" } ]

[ { "docid": "7069481", "title": "", "text": "in this construction. To apply that rule to the present case would be begging the question, because, with reference to this contract, no state court has so held, and such construction appears to me quite unjustifiable. As to the third defense, and generally: The bill by paragraph 41 makes a basis for relief in the nature of interpleader, although such relief is not specifically prayed. This is a formality, and it should be . considered as asked for. A bill of interpleader, strictly so called, will not lie where complainant claims any interest in the subject-matter (Killian v. Ebbinghaus, 110 U. S. 571, 4 Sup. Ct. 232, 28 L. Ed. 246), but equitable relief, analogous to interpleader, will often be granted in aid of complainant’s interest, when there are other interconflicting interests (Street’s Fed. Eq. Pr. § 2235; Killian v. Ebbinghaus, 110 U. S. 572, 4 Sup. Ct. 232, 28 L. Ed. 246; Pacific National Bank v. Mixter, 124 U. S. 729, 8 Sup. Ct. 718, 31 L. Ed. 567; Groves v. Sentell, 153 U. S. 485, 14 Sup. Ct. 898, 38 L. Ed. 785; Provident Soc. v. Roeb [C. C.] 115 Fed. 359). The only difference indicated by any of these cases between the procedure and relief appropriate to a strict bill of interpleader and to those analogous bills, is that in the latter the complainant cannot receive nontaxable costs out of the fund. Groves v. Sentell, supra. In Blair v. Chicago, 201 U. S. 400, 26 Sup. Ct. 427, 50 L. Ed. 801, the Supreme Court approved the filing of a bill to settle a dispute with a city concerning the meaning, obligations, and performance of a street railway franchise; and, while that bill was filed by receivers in possession of the property, it seems to justify the present bill as in the nature of a bill of interpleader, if it be once conceded that a mortgagee has a property right for the protecting of which it may resort to an equity court. I conclude, therefore, that this case is a proper one for relief in the nature" } ]

[ { "docid": "7705351", "title": "", "text": "PARDEE, Circuit Judge (after stating the facts as above), i. Judge Parlange, in the circuit court, overruled the demurrer on the ground that the bill, if not good as a pure bill of interpleader, was certainly good as a bill in the nature of a bill of interpleader, and showing equities in favor of complainant entitling it to relief; citing Groves v. Sentell, 153 U. S. 485, 14 Sup. Ct. 898, 38 L. Ed. 785, and other authorities. This ruling is fully supported by the adj’udged cases cited, and, so far as the demurrer to the bill is concerned, Judge Parlange’s opinion, found in the record, needs neither to be amplified nor supported. 2. It is not contended in this court that the decree pro confesso against the McNamara defendants was erroneously taken, nor that said defendants were not actually in default. “If one defendant in a bill of interpleader establishes his title and the other make's default, the court will decree payment to the former, and a perpetual injunction against the latter.” 2 Daniell, Ch. Pl. & Prac. (5th Ed.) 1494, note. To the same effect see.2 Beach, Mod. Eq. Prac. § 638. That this is correct practice is declared in many adjudged cases. See Richards v. Salter, 6 Johns. Ch. 445; Plaster Co. v. White, 44 Mich. 25, 5 N. W. 1086; Badeau v. Rogers, 2 Paige, 209. Richards v. Salter was decided by Chancellor Kent on a review of the practice and authorities, and we quote, as conclusive on the subject, from his opinion, as follows: “The defendant S. has answered, and set forward his right and title to the money, and the other defendants have not supported, their claim. Upon this bill the question of right may be decided in favor of one defendant against another. If one defendant establishes a title, and the other makes default the court will decree payment to the former, and a perpetual injunction against the latter. This was so done in Bolton v. Williams, 4 Brown, Ch. 297; and also in Hodges v. Smith, decided by Lord Kenyon as master" }, { "docid": "13442716", "title": "", "text": "233, 234; Stephenson v. Burdett, 56 W. Va. 109, 48 S. E. 846, 10 L. R. A. (N. S.) 748; Story’s Equity Jurisprudence (14th Ed.) vol. 2, § 1140; 33 C. J. 424. We think that, at the time the company filed its bill, it was not in a position to require the other defendants to interplead with Klaber. They were not demanding anything of it, and whether they would ever be in a position to demand anything of it was purely conjectural. The indemnity provided by the policy was then adequate to meet any existing liability of or claim against the company, and no showing was or could then be made that there were or would be claims aggregating more than $10,-000 against it. The company’s denial • of liability for its assured and its defense of all suits and claims leaves it in a poor position, to treat those seeking judgments against its assured- as claimants against it for the purpose of interpleader. The effect of the decree appealed from is to prevent the only real claimant under the policy from collecting what is due him until it can be ascertained whether other claimants will come into existence. The other defendants could not interplead because they had no claims to interplead with. They could neither claim nor disclaim. The most they could do would be to inform the court whether, if they succeeded in obtaining judgments against the assured, they intended to assert any claims against the company under the terms of its policy, or whether they did not. We reach the conclusion that the bill was not sufficient either as a bill of interpleader or one in the nature of a bill of interpleader. The company has asked permission to show that, since this appeal was docketed -a judgment for $10,000 has been obtained by the defendant Erwin against its assured. It is obvious that what has xtranspired since the appeal cannot be considered in aid of the bill or the decree. If the facts stated in the bill were not sufficient to give the court jurisdiction," }, { "docid": "11493857", "title": "", "text": "are properly chargeable against said fund.” The final decree permanently enjoined both claimants from other suits and awarded the fund pursuant to the settlement. The Interpleader Act provides that the “court shall hear and determine the cause and shall discharge the complainant from further liability; and shall make the injunction permanent and enter all such other orders and decrees as may be suitable and proper.” Like the 1925 act it omits the clause of the original 1917 act permitting the retention out of the fund of “complainant’s actual court costs.” See 28 USCA § 41, subd. 26, p. 645, and 1927 Supplement, p. 4. U. S. Code Annotated, title 28, § 572, allows to attorneys “on a final hearing in equity” a docket fee of $20. See, too, section 830. U. S. Code Annotated, tille 28, § 555, subd. 8, provides as to clerks’ fees “for receiving, keeping, and paying out money in pursuance of any statute or order of court * * * one percentum of the amount so received, kept and paid out. * * • * ff It is well settled that a stakeholder, who brings the nonstatutory equity inter-pleader bill, is entitled to reasonable attorney’s fees, as well as other costs. McNamara v. Provident Sav. Life Assur. Soc. of New York (C. C. A.) 114 F. 910; Louisiana State Lottery Co. v. Clark (C. C.) 16 F. 20. The Interpleader Act effects no important change in the substantive rights, of parties to an interpleader suit; it merely enlarges the jurisdiction of federal courts over the necessary parties to certain interpleader suits. Nothing in the language or in the history of this essentially jurisdictional act evidences an intent that the rules as to costs and attorney’s fees in a statutory interpleader should be different from those that prevail in the ordinary equity interpleader whether it be in the federal or state courts. Whatever inferences might have been drawn under the 1917 act from the words “actual court costs” as possibly denying to the plaintiff attorney’s fees, are inapplicable to the 1926 act; it omits this clause and" }, { "docid": "17602302", "title": "", "text": "in the action at law, and is 'brought within the same jurisdiction. These facts are sufficient for jurisdictional purposes. Root v. Woolworth, 150 U. S. 401, 14 S. Ct. 136, 37 L. Ed. 1123; Sherman Nat. Bank v. Shubert Theatrical Co., 247 F. 256 (C. C. A. 2); McCabe v. Guaranty Trust Co., 243 F. 845 (C. C. A. 2); Campbell v. Golden Cycle Mining Co., 141 F. 610 (C. C. A. 8). The nature of the suit, its purposes as the decree entered shows, clearly demonstrates it to be an ancillary suit. Julian v. Central Trust Co., 193 U. S. 93, 113, 24 S. Ct. 399, 48 L. Ed. 629; In re Williams (D. C.) 123 F. 321; 1 Pomeroy’s Equity Jurisprudence, § 191 (4th Ed.). The bill was plainly dependent upon the action at law, and the jurisdiction to entertain it was referable to that invoked and existing in the action at law out of which it arose. Eiehel v. U. S. Fidelity & Guaranty Co., 245 U. S. 102, 38 S. Ct. 47, 62 L. Ed. 177. A bill of discovery may be maintained when it is in aid of an action for damages under the Clayton Act. It is urged that equity will not grant a decree of discovery in .aid of enforcement of a penalty (Boyd v. United States, 116 U. S. 616, 631, 6 S. Ct. 524, 29 L. Ed. 746), and that an action for «damages under the Anti-Trust Laws (15 USCA § 1 et seq.) is one for a penalty. The appellant may assert no constitutional privilege against disclosure. Hale v. Henkel, 201 U. S. 43, 26 S. Ct. 370, 50 L. Ed. 652. In an action under the Anti-Trust Laws, disclosure by one in the position of the appellant may be obtained. Porto Rican American Tobacco Co. v. American Tobacco Co., 30 F.(2d) 234, 237 (C. C. A. 2). It has been held that 'actions under the Anti-Trust Laws are not actions to enforce penalties with respect either to assignment of the chose in action (United Copper Security Co. v. Amalgamated" }, { "docid": "13442713", "title": "", "text": "against the assured, and cannot justly be charged with laches. Whatever legal remedies it has are, perhaps, as likely to prove inadequate as those of any insurance stakeholder against whom claims are made in excess of its liability. See National Fire Ins. Go. v. Sanders (C. C. A. 5) supra, 38 F.(2d) 212. We are convinced, however, that, under the allegations of tho bill, Klaber was the only defendant who was an actual claimant, and that the other defendants are persons who may become claimants depending upon whether they succeed in procuring judgments against tho assured or whether they do not. We are also convinced that the company is not a disinterested stakeholder. It does not aver that it is. The facts pleaded show that it is not. It admits no rights in the defendants other than Klaber to the fund, and no liability of either itself or its assured to them. It occupies a position of active hostility to all defendants except Klaber, and must, if it can, prevent their ever obtaining any claims against the fund. See Stusser v. Mutual Union Ins. Co., 127 Wash. 449, 221 P. 331, 333.; Pope v. Missouri Pac. Ry. Co. (Mo. Sup.) 175 S. W. 956, 957. Moreover, if it succeeds in defeating their claims against its assured, there will be about $6,-000 left in the registry of the court after payment of tho Klaber judgment, to which the company alone will have a claim,. Our conclusion is that the bill is not one whieh comes within, the Interpleader Aet, and that the court therefore was clearly without authority to enjoin Klaber from proceeding with his garnishment, and could not compel those defendants who were citizens of states other than Nebraska to interplead. It does not necessarily follow, however, that because the bill was not within the statute and that the decree was therefore erroneous in the particulars mentioned, the appellants were entitled to a dismissal of the suit. The jurisdictional amount is involved, and there is diversity of citizenship. Therefore, if the bill, although not one of statu tory interpleader, may" }, { "docid": "13442711", "title": "", "text": "respect to certain hills of interpleader, tho insurer must present a hill whieh not only contains the averments required by the statute, but which is sufficient under the principles of equity. The act does not deprive the federal courts of any jurisdiction whieh they previously had over hills of interpleader, nor does it change tho equitable principles governing such hills. Mutual Life Ins. Co. of N. Y. v. Bondurant (C. C. A. 6) 27 F.(2d) 464; National Fire Ins. Co. v. Sanders (C. C. A. 5) 38 F.(2d) 212, 214; Calloway v. Miles (C. C. A. 6) supra, 30 F.(2d) 14. It merely provides that in certain cases and for the benefit of a class of disinterested stakeholders the courts may exercise powers that could not otherwise be exercised. No insurer should be denied the benefits which were intended to be conferred by the aet, but, on the other hand, since tho courts have no legislative powers, they have no right to extend the unusual authority granted by the aet to eases whieh do not fairly fail within its provisions, liberally construed. There is no doubt that the courts, in the interests of justice, have shown a tendency to relax the technical rules relating to the essential elements of a bill of interpleader so fax as possible; but that those rules still exist cannot he controverted. If the bill before us showed that the defendants other than Klaber were bona fide adverse claimants against the company within the meaning of the Interpleader Aet, and that the company was a disinterested stakeholder, we would be inclined to hold that it might maintain this suit under the act. The hazard which the company seeks to avoid was not caused by it. The rights of the defendants arise from a common source, namely, the accident. There is a real danger of the company’s being subjected to more than one suit by those who seek judgments against its assured, if they are successful. It started this suit immediately after Klaber commenced his proceeding to recover from it by garnishment the amount of his judgment" }, { "docid": "2577031", "title": "", "text": "stand in the same stead as the $2,138.26 item, and were in this litigation, the same rules would be applied. In any event, no reason is apparent why a depositor should object if his bank honors one of his ehecks and dishonors others, if his balance was insufficient to pay them all. These settled principles determine this case. The attempted reversal of the charge of $2,138.26 was ineffective. The St. Joseph bank is liable to the Topeka bank for the amount collected by it with interest from the date of collection. The St. Joseph bank is liable to tbe receiver for the balance in the account of the Holton bank, after effect is given to all charges properly made, with interest from the date of demand. The sum paid into court, with interest accretions if any, may properly he used to discharge such liabilities, when determined, as far as it may reach. The balance, if any, is collectible on execution. Judgment affirmed. Courts of respectable authority have adopted Pomeroy’s statement that the requisites of an action in interpleader are (1) a substantial dispute among the defendants as to the ownership of or right to a particular fund or specific property; (2; the adverse claims must be derived from a common source; (3) the plaintiff must have incurred no independent liability to any claimant, but must stand, as a neutral stakeholder, indifferently between them; (4) if the hazard which plaintiff seeks to avoid has been occasioned by his own act, he is not entitled to the remedy. Pomeroy’s Eq. Juris., vol. IV, § 1459, et seq.; Calloway v. Miles (C. C. A. 6) 30 F.(2d) 14; Morgan v. Kraft, 52 App. D. C. 172, 285 F. 906; Hayward & Clark v. McDonald (C. C. A. 5) 192 F. 890; Wells, Fargo & Co. v. Miner (C. C. Cal.) 25 F. 533; McWhirter v. Halsted (C. C. N. J.) 24 F. 828; Bedell v. Hoffman, 2 Paige (N. Y.) 199. It lias also been held that a bill of interpleader will not lie unless the establishment of plaintiff’s liability to one claimant" }, { "docid": "8760950", "title": "", "text": "Pusey & Jones Co. v. Miller (C. C.) 61 Fed. 401; Stephenson & Coon v. Burdett, 56 W. Va. 109, 48 S. E. 846, 10 L. R. A. (N. S.) 748; Groves v. Sentell, 153 U. S. 465, 486, 14 Sup. Ct. 898, 38 L. Ed. 785; 3 Street’s Fed. Eq. Prac. § 2243: 1 Foster’s Fed. Prac. (4th Ed.) § 89; 1 Story’s Eq. Pldg. (8th Edd § 297b; 5 Pomeroy’s Eq. Tur. (1 Eq. Rem.) § 60; 2 Daniell’s Ch. Pldg. & Prac. (5th Am. Ed.) 1495; 11 Ency. PL & Pr. 479. The complainants were the agents of F. M. McDonald, now deceased, for the purpose of making purchases of cotton,, grain, and securities. For that purpose they received deposits of money from McDonald. The account between complainants and McDonald is made an exhibit to the bill. It shows more than 100 items of debit and 121 items of credit. The former range in amount from 25 cents to $1,677.47, and the latter from 20 cents to $2,125.40. The account, as exhibited by the complainants, shows a balance against them of $1,175.90, which they offer to pay into court; but the bill shows that •McDonald's administrator claims, as due him on account growing out of the transactions, $5,727.49, and the defendant Hartman claims $2,500 due him by virtue of transactions with the deceased, McDonald, relating to the fund held by the complainants. Hartman’s claim is derived from McDonald, deceased. Suits at law have been brought by the defendants for these sums, respectively. It is apparent from the averments of the bill that an accounting will be necessary to ascertain the true amount of the complainant’s liability. This necessity could have been shown by more formal averments; but no objection has been made to the bill in this regard. The bill contains no special prayer for an accounting, as is usual in such cases; but it contains a prayer for general relief, and, on such prayer, any relief may be had that the averments of the bill may warrant. Kelly v. Payne, 18 Ala. 371. The particular relief" }, { "docid": "17602301", "title": "", "text": "at law. If the bill is ancillary, the question of independent jurisdiction under section 12 of the Clayton Act is not important. Eichel v. U. S. Fidelity & Guaranty Co., 245 U. S. 102, 38 S. Ct. 47) 62 L. Ed. 177. The bill of discovery is ancillary to the law action. Its very purpose is that of aiding the aetion at law. Such a bill has been called ancillary in the general sense of' that term. Kurtz v. Brown (C. C. A. 3), 152 F. 372, 11 Ann. Cas. 576. Counsel has not cited, nor has our independent search found, any ease holding a bill of discovery dependent and ancillary for jurisdictional purposes. However, the bill of discovery is in aid of an aetion at law in the same district, and wo think is dependent and ancillary for jurisdictional purposes, and jurisdiction over the bill may be sustained because of the jurisdiction had over the action at law. The suit is between the same parties, and is in aid of the claim of damages in the action at law, and is 'brought within the same jurisdiction. These facts are sufficient for jurisdictional purposes. Root v. Woolworth, 150 U. S. 401, 14 S. Ct. 136, 37 L. Ed. 1123; Sherman Nat. Bank v. Shubert Theatrical Co., 247 F. 256 (C. C. A. 2); McCabe v. Guaranty Trust Co., 243 F. 845 (C. C. A. 2); Campbell v. Golden Cycle Mining Co., 141 F. 610 (C. C. A. 8). The nature of the suit, its purposes as the decree entered shows, clearly demonstrates it to be an ancillary suit. Julian v. Central Trust Co., 193 U. S. 93, 113, 24 S. Ct. 399, 48 L. Ed. 629; In re Williams (D. C.) 123 F. 321; 1 Pomeroy’s Equity Jurisprudence, § 191 (4th Ed.). The bill was plainly dependent upon the action at law, and the jurisdiction to entertain it was referable to that invoked and existing in the action at law out of which it arose. Eiehel v. U. S. Fidelity & Guaranty Co., 245 U. S. 102, 38 S. Ct." }, { "docid": "1374768", "title": "", "text": "answered, and thereupon each filed an answer to the answer of the other and the caso proceeded to a final hearing. The original suits against plaintiff were thus diverted into a contest between the defendants. The plaintiff introduced no testimony. The court held that Albert Miles, administrater, was entitled to the fund and directed its payment to Mm and discharged tho plaintiff. The defendant, Mi's. Calloway, appealed and assigned errors. A careful review has convinced us that tho bill should have been dismissed. It cannot be sustained upon the record as a bill of interpleader. Section 41, subsec. 26, of title 28, U. S. C., carried into tho Code from the Act of February 22, 1917, c. 113, as amended by the Act of February 25, 1925, c. 317, does not change the equitable principles controlling interpleader. It is jurisdictional only. It simply confers jurisdiction upon the District Court “of suits in equity begun by bills of interpleader,” where adverse claimants of insurance are residents of different states with one residing in the district where the suit is brought. The equitable remedy of interpleader has certain essential elements. We mention only those material here: First — If the hazard which plaintiff seeks to avoid has been occasioned by his own act ho is not entitled to the remedy. Pomeroy’s Equity Jurisprudence, vol. 4, § 1473, p. 3478; Connecticut Mutual Life Ins. Co. v. Tucker, 23 R. I. 1, 4, 49 A. 26, 91 Am. St. Rep. 590; Jax Ice & Coal Storage Co. v. South Florida Farms Co., 91 Fla. 593, 608, 109 So. 212, 48 A. L. R. 957. Second — The plaintiff must be a stakeholder only. He must stand indifferent between the claimants, and must have incurred no independent liability to either of them. Pomeroy’s Eq. Jurisp. vol. 4, § 1464, p. 3461; Story’s Eq. Pl. § 297, p. 292; Gibson’s Suits in Chancery, § 717, p. 640; Killian v. Ebbinghaus, 110 U. S. 568-574, 4 S. Ct. 232, 28 L. Ed. 246. In Standley v. Roberts (C. C. A.) 59 F. 841, Judge Sanborn said: “No" }, { "docid": "13442715", "title": "", "text": "be sustained as a bill in the nature of a bill of interpleader, it should not be dismissed. A stakeholder who is not indifferent may maintain such a bill. McNamara v. Provident Sav. Life Assur. Soc. of N. Y. (C. C. A. 5) 114 F. 910; Knickerbocker Trust Co. v. City of Kalamazoo (C. C.) 182 F. 865; Hayward & Clark v. McDonald (C. C. A. 5) 193 F. 890; Sherman Nat. Bank of N. Y. v. Shubert Theatrical Co. (C. C. A. 2) 247 F. 250; Groves v. Sentell, 153 U. S. 465, 485, 486, 14 S. Ct. 898, 38 L. Ed. 785; Fleming v. Phoenix Assur. Co. (C. C. A. 5) 40 F.(2d) 38; 15 R. C. L. 233. The general rule, however, is that the only material difference between a true bill of interpleader and a bill in the nature of a bill of interpleader is that in the latter the plaintiff may show that he has an interest in the subject of the controversy between the defendants. 15 R. C. L. 233, 234; Stephenson v. Burdett, 56 W. Va. 109, 48 S. E. 846, 10 L. R. A. (N. S.) 748; Story’s Equity Jurisprudence (14th Ed.) vol. 2, § 1140; 33 C. J. 424. We think that, at the time the company filed its bill, it was not in a position to require the other defendants to interplead with Klaber. They were not demanding anything of it, and whether they would ever be in a position to demand anything of it was purely conjectural. The indemnity provided by the policy was then adequate to meet any existing liability of or claim against the company, and no showing was or could then be made that there were or would be claims aggregating more than $10,-000 against it. The company’s denial • of liability for its assured and its defense of all suits and claims leaves it in a poor position, to treat those seeking judgments against its assured- as claimants against it for the purpose of interpleader. The effect of the decree appealed from is to prevent" }, { "docid": "13442702", "title": "", "text": "bill is either a bill of interpleader or a bill in the nature of a bill of inter-pleader. It is clear that it cannot be sustained as a bill of interp leader. In such a bill it is necessary to aver that the complainant has no interest in the subject-matter of the suit; he must admit title in the claimants and aver that he is indifferent between them, and he cannot seek relief in the premises against either of them.” And in Groves v. Sentell, 153 U. S. 465, 485, 14 S. Ct. 898, 905, 38 L. Ed. 785, the court said: “The general rule is that a party who has an interest in the subject-matter of the suit cannot filo a ‘bill of interpleader,’ strictly so called. In fact, the assertion of perfect disinterestedness is an essential ingredient of such a bill.” The federal courts always have had jurisdiction to entertain bills of interpleader where the amount in controversy was sufficient and the other essentials of jurisdiction were present. “Interpleader in the United States Courts,” Chafes, Yale Law Journal, vol. 41, p. 1134, cont’d in vol. 42, page 41. There were, however, two reasons why their jurisdiction frequently proved ineffective. First, under the general provisions of law a United States District Court cannot issue process beyond the limits of the District, and a defendant in a civil suit can, be subjected to its jurisdiction in personam only by service within the District. Toland v. Sprague, 12 Pet. 300, 330, 9 L. Ed. 1093; Herndon v. Ridgway, 17 How. 424, 15 L. Ed. 100; New York Life Insurance Co. v. Bangs, 103 U. S. 435, 26 L. Ed. 580; Munter v. Weil Corset Co., 261 U. S. 276, 279, 43, S. Ct. 347, 67 L. Ed. 652; Robertson v. Railroad Labor Board, 268 U. S. 619, 623, 45 S. Ct. 621, 69 L. Ed. 1119. Second, the District Courts are without authority to stay pro ceedings in a state court unless expressly authorized by Congress. There are exceptions to this rule whieh are not here involved. The statute forbidding such" }, { "docid": "13442714", "title": "", "text": "against the fund. See Stusser v. Mutual Union Ins. Co., 127 Wash. 449, 221 P. 331, 333.; Pope v. Missouri Pac. Ry. Co. (Mo. Sup.) 175 S. W. 956, 957. Moreover, if it succeeds in defeating their claims against its assured, there will be about $6,-000 left in the registry of the court after payment of tho Klaber judgment, to which the company alone will have a claim,. Our conclusion is that the bill is not one whieh comes within, the Interpleader Aet, and that the court therefore was clearly without authority to enjoin Klaber from proceeding with his garnishment, and could not compel those defendants who were citizens of states other than Nebraska to interplead. It does not necessarily follow, however, that because the bill was not within the statute and that the decree was therefore erroneous in the particulars mentioned, the appellants were entitled to a dismissal of the suit. The jurisdictional amount is involved, and there is diversity of citizenship. Therefore, if the bill, although not one of statu tory interpleader, may be sustained as a bill in the nature of a bill of interpleader, it should not be dismissed. A stakeholder who is not indifferent may maintain such a bill. McNamara v. Provident Sav. Life Assur. Soc. of N. Y. (C. C. A. 5) 114 F. 910; Knickerbocker Trust Co. v. City of Kalamazoo (C. C.) 182 F. 865; Hayward & Clark v. McDonald (C. C. A. 5) 193 F. 890; Sherman Nat. Bank of N. Y. v. Shubert Theatrical Co. (C. C. A. 2) 247 F. 250; Groves v. Sentell, 153 U. S. 465, 485, 486, 14 S. Ct. 898, 38 L. Ed. 785; Fleming v. Phoenix Assur. Co. (C. C. A. 5) 40 F.(2d) 38; 15 R. C. L. 233. The general rule, however, is that the only material difference between a true bill of interpleader and a bill in the nature of a bill of interpleader is that in the latter the plaintiff may show that he has an interest in the subject of the controversy between the defendants. 15 R. C. L." }, { "docid": "2577032", "title": "", "text": "action in interpleader are (1) a substantial dispute among the defendants as to the ownership of or right to a particular fund or specific property; (2; the adverse claims must be derived from a common source; (3) the plaintiff must have incurred no independent liability to any claimant, but must stand, as a neutral stakeholder, indifferently between them; (4) if the hazard which plaintiff seeks to avoid has been occasioned by his own act, he is not entitled to the remedy. Pomeroy’s Eq. Juris., vol. IV, § 1459, et seq.; Calloway v. Miles (C. C. A. 6) 30 F.(2d) 14; Morgan v. Kraft, 52 App. D. C. 172, 285 F. 906; Hayward & Clark v. McDonald (C. C. A. 5) 192 F. 890; Wells, Fargo & Co. v. Miner (C. C. Cal.) 25 F. 533; McWhirter v. Halsted (C. C. N. J.) 24 F. 828; Bedell v. Hoffman, 2 Paige (N. Y.) 199. It lias also been held that a bill of interpleader will not lie unless the establishment of plaintiff’s liability to one claimant will defeat his liability to the other, or if the amount clue from plaintiff is the subject of controversy, Smith v. Mosier (C. C. N. Y.) 169 F. 430; Morgan v. Kraft, supra; and that inter-pleader will not lie by an agent against his principal and a third party claiming the fund by an independent title. Hayward & Clark v. McDonald, supra. If the principal claims some interest in the subject matter, but there are conflicting claimants to the part to which plaintiff asserts no claim, it has been held that an action in the nature of interpleader will lie. Groves v. Sentell, 153 U. S. 465, 486, 14 S. Ct. 898, 38 L. Ed. 785; Hayward & Clark v. McDonald, supra. Cited with approval in Dakin v. Bayly, 290 U. S. 143, 54 S. Ct. 113, 78 L. Ed. 229." }, { "docid": "2302593", "title": "", "text": "that it will be subject to double vexation in respect of one liability and be exposed to the danger of having judgments rendered against it in the garnishment proceedings, although it may prevail as against Fleming. The argument is persuasive. As the appeal is only from an interlocutory order, extended discussion is unnecessary. A bill in the nature of a bill of interpleader, such as this is, will lie where a party is threatened with a multiplicity of suits and double vexation in respect of one liability, although he may at the same time seek to defeat all or part of the claim against himself. Groves v. Sentell, 153 U. S. 465,14 S. Ct. 898, 38 L. Ed. 785; Cleveland v. Insurance Co. of North America, 151 Ala. 191, 44 So. 37; Alexander City Bank v. Home Ins. Co., 214 Ala. 544, 108 So. 369. As between the Phoenix Assurance Company as plaintiff, and Fleming - and the attaching creditors as defendants, we think the bill will lie. The plaintiff also contends that all of the insurance companies have a community of interest, and the bill is brought on their behalf as persons similarly situated. We do not agree with this contention. There is no privity between plaintiff and the other insurance companies, nor is there any right of contribution among them. The liability of each is fixed by the total loss, 'of which each must bear its pro rata, according to the face of the policy issued. It is possible that judgments differing in amount may be rendered against the various insurance companies, but a judgment against one will not affect the others. Of course, it would be more convenient and tend to better promote the ends of justice to have the entire litigation settled in one suit, but there is not sufficient community of interest to warrant one of them bringing a bill on behalf of all. Scruggs & Echols v. Am. Cent. Ins. Co. (C. C. A.) 176 F. 224, 36 L. R. A. (N. S.) 92; Equitable Life Assur. Society v. Brown, 213 U. S. 25," }, { "docid": "13442701", "title": "", "text": "v. Merritt, 145 Minn. 428, 177 N. W. 770; Maxwell v. Frazier, 52 Or. 183, 96 P. 548, 18 L. R. A. (N. S.) 102, 104. And the bill must show that each of the defendants claims a right, and such a right as they may inter-plead for. Story’s Equity Jurisprudence (14th Ed.) vol. 2, § 1136; Pusey & Jones Co. v. Miller (C. C.) 61 F. 401, 403; Kahn v. Garvan (D. C.) 263 F. 969, 915. If the plaintiff denies his liability to any of the defendants, he is not entitled to the remedy; he destroys the very foundation upon which it rests. Pomeroy’s Equity Jurisprudence (4th Ed.) vol. 4, § 1325, and note. The bill must show that all of the requisites entitling the plaintiff to the remedy exist in the ease. Pomeroy’s Equity Jurisprudence (4th Ed.) vol. 4, § 1328. An averment that the plaintiff is disinterested is necessary. In Killian v. Ebbinghaus, 110 U. S. 568, 571, 4 S. Ct. 232, 233, 28 L. Ed. 246, the court said: “The bill is either a bill of interpleader or a bill in the nature of a bill of inter-pleader. It is clear that it cannot be sustained as a bill of interp leader. In such a bill it is necessary to aver that the complainant has no interest in the subject-matter of the suit; he must admit title in the claimants and aver that he is indifferent between them, and he cannot seek relief in the premises against either of them.” And in Groves v. Sentell, 153 U. S. 465, 485, 14 S. Ct. 898, 905, 38 L. Ed. 785, the court said: “The general rule is that a party who has an interest in the subject-matter of the suit cannot filo a ‘bill of interpleader,’ strictly so called. In fact, the assertion of perfect disinterestedness is an essential ingredient of such a bill.” The federal courts always have had jurisdiction to entertain bills of interpleader where the amount in controversy was sufficient and the other essentials of jurisdiction were present. “Interpleader in the United States" }, { "docid": "2302592", "title": "", "text": "dismiss the bill as being without equity on the ground the plaintiff has a plain and adequate remedy at law, and further set up that the District Court was without power to enjoin the prosecution of the suits in the state courts. The other insurance companies filed a joint answer admitting all the allegations of the bill. The garnisheeing creditors also filed a joint answer, raised no question as to the jurisdiction of the court, and admitted practically all the allegations of the bill except those upon which the plaintiff relied for relief as against Fleming, which were denied. After a hearing, the District Court overruled the motion to dismiss the bill and issued a preliminary injunction against all the defendants. From the judgment granting a preliminary injunction, this appeal is prosecuted by Fleming alone. It is argued on behalf of the plaintiff that, as its liability to Fleming is as yet undetermined, it will be compelled to litigate that question, not only as against him, but as against each of the garnisheeing creditors, and that it will be subject to double vexation in respect of one liability and be exposed to the danger of having judgments rendered against it in the garnishment proceedings, although it may prevail as against Fleming. The argument is persuasive. As the appeal is only from an interlocutory order, extended discussion is unnecessary. A bill in the nature of a bill of interpleader, such as this is, will lie where a party is threatened with a multiplicity of suits and double vexation in respect of one liability, although he may at the same time seek to defeat all or part of the claim against himself. Groves v. Sentell, 153 U. S. 465,14 S. Ct. 898, 38 L. Ed. 785; Cleveland v. Insurance Co. of North America, 151 Ala. 191, 44 So. 37; Alexander City Bank v. Home Ins. Co., 214 Ala. 544, 108 So. 369. As between the Phoenix Assurance Company as plaintiff, and Fleming - and the attaching creditors as defendants, we think the bill will lie. The plaintiff also contends that all of" }, { "docid": "8760949", "title": "", "text": "other features that do not come within the definition of bills of interpleader. A complainant is not to be deprived of equitable relief, if entitled to it on other equitable grounds, because his case has some, but not all. of the attributes of interpleader in equity. For example, and to refer to a class of cases analogous to the one at bar, a complainant may have in his hands property or money to which others have conflicting claims, in reference to which property or conflicting claims the complainant may have equitable rights or claims and be entitled to equitable relief. In such case, while he cannot maintain a bill of interpleader strictly so called, he is nevertheless entitled to relief, and is permitted to maintain a bill in the nature of a bill of interpleader. Darden’s Adm’r v. Burn’s Adm’r, 6 Ala. 362; Van Winkle v. Owen, 54 N. J. Eq. 253, 34 Atl. 400; Mohawk & Hudson R. R. Co. v. Clute, 4 Paige (N. Y.) 384; Nofsinger v. Reynolds, 52 Ind. 218, 225; Pusey & Jones Co. v. Miller (C. C.) 61 Fed. 401; Stephenson & Coon v. Burdett, 56 W. Va. 109, 48 S. E. 846, 10 L. R. A. (N. S.) 748; Groves v. Sentell, 153 U. S. 465, 486, 14 Sup. Ct. 898, 38 L. Ed. 785; 3 Street’s Fed. Eq. Prac. § 2243: 1 Foster’s Fed. Prac. (4th Ed.) § 89; 1 Story’s Eq. Pldg. (8th Edd § 297b; 5 Pomeroy’s Eq. Tur. (1 Eq. Rem.) § 60; 2 Daniell’s Ch. Pldg. & Prac. (5th Am. Ed.) 1495; 11 Ency. PL & Pr. 479. The complainants were the agents of F. M. McDonald, now deceased, for the purpose of making purchases of cotton,, grain, and securities. For that purpose they received deposits of money from McDonald. The account between complainants and McDonald is made an exhibit to the bill. It shows more than 100 items of debit and 121 items of credit. The former range in amount from 25 cents to $1,677.47, and the latter from 20 cents to $2,125.40. The account, as exhibited" }, { "docid": "13442700", "title": "", "text": "Jurisprudence (14th Ed.) vol. 2, § 1118. The essential elements of the equitable remedy of interpleader are: (1) The same thing, debt, or duty must be claimed by both or all the parties against whom the relief is demanded. (2) All their adverse titles or claims must be dependent, or be derived from a common source. (3) The plain!iff must not have nor claim any interest in the subject-matter. (4) He must have incurred no independent liabilfly to either of the claimants and must stand perfectly indifferent between them, in the position merely of a stakeholder. Pomeroy’s Equity Jurisprudence (4th Ed.) vol. 4, § 1322; Wells, Fargo & Co. v. Miner (C. C.) 25 F. 533. See, also, Calloway v. Miles (C. C. A. 6) 30 F.(2d) 14; Connecticut General Life Ins. Co. v. Yaw (D. C.) 53 F.(2d) 684. A bill of interpleader cannot he maintained by any person who does not show two or more claimants in existence capable of interpleading. Story’s Equity Jurisprudence (14th Ed.) vol. 2, § 1136; Alton & Peters v. Merritt, 145 Minn. 428, 177 N. W. 770; Maxwell v. Frazier, 52 Or. 183, 96 P. 548, 18 L. R. A. (N. S.) 102, 104. And the bill must show that each of the defendants claims a right, and such a right as they may inter-plead for. Story’s Equity Jurisprudence (14th Ed.) vol. 2, § 1136; Pusey & Jones Co. v. Miller (C. C.) 61 F. 401, 403; Kahn v. Garvan (D. C.) 263 F. 969, 915. If the plaintiff denies his liability to any of the defendants, he is not entitled to the remedy; he destroys the very foundation upon which it rests. Pomeroy’s Equity Jurisprudence (4th Ed.) vol. 4, § 1325, and note. The bill must show that all of the requisites entitling the plaintiff to the remedy exist in the ease. Pomeroy’s Equity Jurisprudence (4th Ed.) vol. 4, § 1328. An averment that the plaintiff is disinterested is necessary. In Killian v. Ebbinghaus, 110 U. S. 568, 571, 4 S. Ct. 232, 233, 28 L. Ed. 246, the court said: “The" }, { "docid": "11493858", "title": "", "text": "* * • * ff It is well settled that a stakeholder, who brings the nonstatutory equity inter-pleader bill, is entitled to reasonable attorney’s fees, as well as other costs. McNamara v. Provident Sav. Life Assur. Soc. of New York (C. C. A.) 114 F. 910; Louisiana State Lottery Co. v. Clark (C. C.) 16 F. 20. The Interpleader Act effects no important change in the substantive rights, of parties to an interpleader suit; it merely enlarges the jurisdiction of federal courts over the necessary parties to certain interpleader suits. Nothing in the language or in the history of this essentially jurisdictional act evidences an intent that the rules as to costs and attorney’s fees in a statutory interpleader should be different from those that prevail in the ordinary equity interpleader whether it be in the federal or state courts. Whatever inferences might have been drawn under the 1917 act from the words “actual court costs” as possibly denying to the plaintiff attorney’s fees, are inapplicable to the 1926 act; it omits this clause and grants power to enter all orders that may be' suitable. Indeed, this omission strongly supports the view that Congress intended no restrictions on costs under the new act. Terry v. Supreme Forest (D. C.) 21 F.(2d) 158, and certain unreported cases in the Northern district of Illinois, allowed attorney’s fees in suits under the 1926 act; in some, at least, it was by consent. In N. Y. Life Ins. Co. v. Bidoggia (D. C.) 15 F.(2d) 126, the point was not decided; delay in bringing suit was held to bar recovery of cost and fees. The insurance companies, therefore, are entitled to a reasonable attorney’s fee out of the fund paid into court; the amount should be determined by the District Court. Inasmuch as the final decree sustained the interpleader and granted the injunction prayed for therein, the interpleader plaintiff is a “prevailing party,” and entitled to the statutory attorney’s docket fee. That the final decree was by consent of the claimants and based upon their settlement as between themselves does not affect plaintiff’s right" } ]

[ { "docid": "15667723", "title": "", "text": "RÍCHARD S. ARNOLD, Chief Judge. This is an action for breach of a collective-bargaining agreement under § 301 of the Labor Management Relations Act, 29' U1S.C. § 185 (1994). The plaintiff, William L. Danylchuk, Jr., alleges that the defendant, Des Moines Register & Tribune Co., discharged him without good cause and is violating the agreement by refusing to submit the matter to binding arbitration. The company’s defense turns on the fact that the union representing the.bargaining unit of which Danyl-' chuk was a member, Des Moines Mailers Union Local 358, has chosen not to pursue the arbitration remedy. The District Court held that the union, in choosing not to pursue the arbitration, had violated no duty owed to Danylehuk, and therefore granted the employer’s motion for summary judgment. (The union itself, originally sued as an additional defendant, had earlier settled with thé plaintiff.) The key question presented has to do with the union’s conduct. Was the union in breach of its duty of fair representation? Tp show such a breach, plaintiff must demonstrate that the union has acted in án arbi trary or discriminatory manner, or in bad faith. See Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 914-15, 17 L.Ed.2d 842 (1967); Smith v. United Parcel Service, Inc., 96 F.3d 1066, 1068 (8th Cir.1996). Moreover, the employer, in addition to asserting that the union’s conduct was not to blame under this stringent standard, claims that no agreement to arbitrate existed in any event, the collecr tive-bargaining agreement between it' and the union having expired. In brief, the relevant facts are these. There was an agreement between the union and the company including an arbitration clause. The agreement expired on February 3, 1994, but one of its provisions stated that “the terms and conditions of the expired Agreement shall be maintained until a new Agreement is reached or other action is authorized by the ..,. Union or by the Company.” After the agreement expired, the union took the position that the arbitration process, together with the other terms and conditions of the agreement, survived. The company took the" } ]

[ { "docid": "9844059", "title": "", "text": "v. Lonza, Inc., 658 F.2d 519 (7th Cir. 1981), the Union failed to discharge its duty of fair representation. In contrast, the Union, relying on Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), maintains that an aggrieved union member has no absolute right to arbitration. It argues that regardless of whether the Union’s conduct is measured by the test announced in Hoffman v. Lonza, Inc., 658 F.2d 519 (7th Cir. 1981), or the test enunciated in Baldini v. Auto Workers Union, 581 F.2d 145 (7th Cir. 1978), the Union did not breach its duty of fair representation. According to Hoffman, an aggrieved union member will prevail on a claim that the union breached its duty of fair representation only upon proof that the union intentionally and severely discriminated against the member or that the union acted fraudulently or deceitfully. Baidini requires the aggrieved member to prove only that the union’s conduct was “arbitrary, discriminatory or in bad faith.” 581 F.2d at 150. Under Hoffman, this circuit’s most recent statement on what constitutes breach of the duty of fair representation, the union has not breached its duty to Cote. In Hoffman, we held that a union had not breached its duty of fair representation when, without explanation, it permitted a grievance proceeding to be terminated by failing to file a timely notice of intent to pursue the grievance to arbitration, 658 F.2d at 520. We held that a union is not liable for its negligence even though that negligence ultimately deprives an employee of a “fair” hearing on the merits of his grievance. A union is liable only if it acts in a “deliberate and severely hostile irrational” manner. Id. at 522. The union’s conduct in Hoffman was clearly more egregious than the Union’s conduct in this case, yet the employee was denied recovery because there was no evidence of “invidious misconduct” on the part of the union. Id. In comparison, the Union here neither acted negligently nor failed to act. Indeed, nothing in the record supports Cote’s conclusion that the Union handled her grievance in" }, { "docid": "22312112", "title": "", "text": "the light most favorable to the employees the Union’s conduct in this case was negligent at most. Rollins v. Techsouth., Inc., 833 F.2d 1525, 1528 (11th Cir.1987) (“In determining whether a factual issue exists, a court must consider all the evidence in the light most favorable to the non-moving party.”). Negligence, however, is not enough to sustain a claim for breach of the duty of fair representation in any context. The only thing that the federal courts seem to be in agreement on with respect to the duty of fair representation is that mere negligence is not a breach of this duty. See Higdon v. United Steelworkers of America, 706 F.2d 1561, 1562 (11th Cir.1983) (per curiam); Harris, 668 F.2d at 1206. Because the employees have failed to show any facts to support their claims that the Union breached its duty of fair representation in the negotiation process, in its handling of their grievances, or in the ratification of the concession agreements, the employees’ hybrid § 301/fair representation claim and their separate claim for breach of the Union’s duty of fair representation must fail. The hybrid § 301/fair representation claim against the Company and Union fails because a crucial element of such a claim is a breach of the union’s duty of fair representation. We now address the employees’ separate claim against the Company for breach of contract. The employees claim that the Company breached provisions contained in the CBA and the concession agreements. As noted previously, the district court concluded that “H.K. Porter and Connors [were] also entitled to summary judgment, their liability under Section 301 being conditional upon the union’s breaching its duty of fair representation.” The grievance and arbitration clause in the CBA required mandatory arbitration over “any question relating to wages, hours of work, and other conditions of employment or any change therein.” It also provided that the decision of the arbitrator would be the final decision on the merits of the grievance. We conclude that the scope of the grievance and arbitration clause was broad enough to include all of the employees’ breach of contract" }, { "docid": "22312109", "title": "", "text": "after ratifying these very concessions, the employees attempt to hold the Union accountable. We do not believe that under these circumstances the Union breached its duty of fair representation in its negotiation of the concession agreements, but, to the contrary, it appears that the Union officials did the best they could under difficult conditions, including imminent closure of the plant. See Dwyer v. Climatrol Industries, Inc., 544 F.2d 307, 311 (7th Cir.1976) (union did not breach duty of fair representation in negotiating plant closedown agreement), cert. denied, 430 U.S. 932, 97 S.Ct. 1553, 51 L.Ed.2d 776 (1977). In the context of grievance processing, in order to establish that the union has breached its duty of fair representation the employee must show that the union’s handling of the grievance was either arbitrary, discriminatory, or done in bad faith. Harris v. Schwerman Trucking Co., 668 F.2d 1204, 1206 (11th Cir.1982); see also Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916-17, 17 L.Ed.2d 842 (1967). An example would be when a union arbitrarily ignores a meritorious grievance or is perfunctory in its processing of the grievance. Id. We note that a union is allowed considerable latitude in its representation of employees. The grievance and arbitration process is not conducted in a judicial forum and union representatives are not held to strict standards of trial advoca cy.... Cases are uniform in holding that neither negligence on the part of the union nor a mistake in judgment is sufficient to support a claim that the union acted in an arbitrary and perfunctory manner. Harris, 668 F.2d at 1206 (citations omitted). In the present case the employees have failed to create a genuine factual dispute with respect to the grievance procedure and the Union’s handling of their grievances. The employees’ claim is without merit. It is ironic that the employees challenge the Union’s processing of their grievances notwithstanding the fact that the Union pursued all of their grievances through arbitration and received an award on two of the grievances presented to the arbitrator. The employees argue that the Union’s conduct in seeking ratification" }, { "docid": "18980623", "title": "", "text": "(9th Cir.1979). Mere negligence on the part of the union does not constitute a breach of the union’s duty. Dente v. International Organization of Masters, Mates and Pilots, Local 90, 492 F.2d 10, 12 (9th Cir.1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974); Balestreri v. Western Carloading, 530 F.Supp. 825, 828 (N.D.Cal.1980), aff'd, 663 F.2d 1078 (9th Cir.1981). However, an act of omission by a union may be so egregious and unfair as to be arbitrary, thus constituting a breach of the duty of fair representation. Robesky v. Oantas Empire Airways Ltd., 573 F.2d 1082, 1090 (9th Cir.1978) (union’s failure to tell employee that her grievance would not be taken to arbitration, leading her to reject employer’s settlement offer which she otherwise would have accepted, could constitute a breach of the duty of fair representation). See also, Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270 at 1272 (9th Cir.1983) (union carelessness may breach duty of fair representation where its failure to perform a ministerial, but critical, act, such as failing to timely file an employee grievance, completely extinguishes employee’s right to pursue claim). But in general, evidence of hostility, arbitrariness, or bad faith is required. Franklin v. Southern Pacific Transportation Co., 593 F.2d 899, 901 (9th Cir.1979). Accepting Castelli’s version of events concerning Lodge 720’s treatment of his grievance, there has been no breach of the duty of fair representation. That the Union business representative spent no more than one and a half hours in investigation and preparation for the arbitration, and did not call key witnesses, constituted neither arbitrariness nor bad faith. A union’s duty requires some minimal investigation of employee grievances, the thoroughness depending on the particular case; only an egregious disregard for union members’ rights constitutes a breach of the union’s duty. Tenorio v. NLRB, 680 F.2d 598, 601, (9th Cir.1982). There is no evidence of such conduct here. Lodge 720’s representation of Castelli at arbitration cannot be characterized as perfunctory or arbitrary. The business representative’s failure to introduce into evidence jewelry found upon Castelli, or to cross-examine a security officer on" }, { "docid": "11165390", "title": "", "text": "it must have ‘seriously undermine[d] the arbitral process.’ Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567 [96 S.Ct. 1048, 1057-58, 47 L.Ed.2d 231] (1976).” Barr v. United Parcel Service, Inc., 868 F.2d 36, 43 (2d Cir.1989). Negligence or “tactical errors” on the part of the union are insufficient to establish a breach of the duty of fair representation. See id. In addition, “ ‘as long as the union acts in good faith, the courts cannot intercede on behalf of employees who may be prejudiced by rationally founded decisions which operate to their particular disadvantage.’” Cook v. Pan American Airways, Inc., 771 F.2d 635, 645 (2d Cir.1985), cert. denied, 474 U.S. 1109, 106 S.Ct. 895, 88 L.Ed.2d 929 (1986) (quoting Capobianco v. Brink’s Inc., 543 F.Supp. 971, 975 n. 3 (E.D.N.Y.1982)). “It is well established that while ‘a union may not arbitrarily ignore a meritorious grievance or process it in a perfunctory fashion’, an employee does not have an absolute right to have his or her grievance taken to arbitration.” Vaca v. Sipes, 386 U.S. at 191, 87 S.Ct. at 917. “The Supreme Court has long recognized that unions must retain wide discretion to act in what they perceive to be their members’ best interests.” Peterson v. Kennedy, 771 F.2d 1244, 1253 (9th Cir.1985); see also Ford Motor Co. v. Huffman, 345 U.S. 330, 337-38, 73 S.Ct. 681, 685-86, 97 L.Ed. 1048 (1953). Here, Morris contends that Local 819 breached its duty of fair representation because it failed to arbitrate his grievances. According to the plaintiff, Local 819 was required to arbitrate the issues, upon his request, because arbitration is a right “expressly granted to Plaintiff through specific provisions of the Collective Bargaining Agreement.” (Plaintiffs memorandum in opposition pp. 1). Moreover, Morris asserts that Arthur Snow, (“Snow”), an Assistant Union Trustee at the time at issue, promised to pursue arbitration to obtain the plaintiffs reinstatement after he was terminated while on disability leave on May 23, 1994. Morris contends that Local 819 has no sound basis for its decision not to arbitrate, a course of action which Morris finds" }, { "docid": "16302992", "title": "", "text": "to a breach of the duty of fair representation is Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1966). In Vaca the Supreme Court held that: A breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith. Id. at 190, 87 S.Ct. at 916. Moreover, in applying this standard, the Court further noted: Though we accept the proposition that a union may not arbitrarily ignore a meritorious grievance or process it in a perfunctory fashion, we do not agree that the individual employee has an absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement. Id. at 191, 87 S.Ct. at 917. In the instant case, the complaint does not allege bad faith, rather, the allegations in; the complaint claim that the union acted in “deliberate, willful and knowing violation of their duty to plaintiff union-member.” Paragraph 24, Plaintiff’s Complaint. In essence, plaintiff’s claim as also found in paragraph 22 of the complaint is that the union breached its duty of fair representation because it failed and refused to process his grievance relative to benefits under Section 20, as amended. The issue before this court on these motions for summary judgment is whether these allegations, as a matter of law, in light of the undisputed facts before the court, constitute a breach of the union’s duty of fair representation. It should be noted at the outset that plaintiff stated in his deposition that he did not believe the union’s decision or action resulted from a personal animosity towards plaintiff, but, rather, the union officials who refused to process his grievance were “just doing their job.” Plaintiff’s Deposition, page 24. In Ruzicka v. General Motors, 523 F.2d 306 (6th Cir. 1975), this circuit interpreted the standards set forth in Vaca and concluded bad faith is not required to prove claims of breach of a duty of unfair representation, but that such a breach may be established by showing arbitrary" }, { "docid": "2228616", "title": "", "text": "threatened Weiss. Garvin prepared a written grievance on Conn’s behalf. The grievance was rejected by the company. The next stage of the grievance procedure established by the collective bargaining agreement between GATX and the union (a local of the Oil, Chemical and Atomic Workers International Union) is arbitration. Conn asked the local’s executive board to take his grievance to arbitration. Garvin was present at the meeting of the board at which Conn made his pitch, but far from supporting Conn told the board, “If it were up to me, I would have fired you [Conn] two years ago!” This was an allusion to Conn’s extensive disciplinary record, documented in one of the exhibits to the complaint. The board voted not to take Conn’s case to arbitration. The company never disciplined Bi-geek or Weiss for their parts in the theft. Conn claims that GATX fired him in violation of the collective bargaining agreement (a claim actionable under section 301 of the Taft-Hartley Act, 29 U.S.C. § 185) and that the union violated its duty toward him of fair representation, a duty founded on interpretation of the National Labor Relations Act. Breininger v. Sheet Metal Workers, 493 U.S. 67, 83-84, 110 S.Ct. 424, 434-35, 107 L.Ed.2d 388 (1989). The claims are entwined. Unless the union violated its duty of fair representation, Conn cannot litigate his claim of breach of contract, because the union’s responsibilities as the exclusive representative of the members of the bargaining unit include responsibility for the decision whether to prosecute a grievance on the employee’s behalf, Brazinski v. Amoco Petroleum Additives Corp., 6 F.3d 1176, 1179 (7th Cir.1993). And unless there was a violation of the collective bargaining agreement, a violation of the duty of fair representation could not have harmed Conn. He would not have had a good claim for the union to prosecute on his behalf; the violation of the duty of fan-representation would have been harmless. White v. General Motors Corp., 1 F.3d 593, 595 (7th Cir.1993); Souter v. United Auto Workers, 993 F.2d 595, 598-99 (7th Cir.1993); Blount v. Local Union 25, 984 F.2d 244," }, { "docid": "7041915", "title": "", "text": "provisions for the arbitration of a union member’s grievances against his employer and require the union member to pursue grievances through the arbitral channels established in the agreement. When the union bound by an arbitration clause, however, refuses to process the member’s grievance, and this failure is due to the union’s intentional misconduct, Hoffman v. Lonza, Inc., 658 F.2d 519, 521 (7th Cir.1981), then the union member has a cognizable claim for breach of the union’s duty of fair representation. The aggrieved union member may then pursue both claims — the claim for breach of the duty of fair representation against the union, and a § 301 claim for breach of the employer’s contractual obligations under the collective bargaining agreement. Thomas, 890 F.2d at 916-917. Because the courts have required that union members bring hybrid suits if they wish to sue their employers under § 301, Local 597 apparently thinks that the obligation to bring a hybrid fair-representation suit runs in both directions. This is simply not the case. In Breininger v. Sheet Metal Workers Int’l Ass’n Local Union No. 6, 493 U.S. 67, 110 S.Ct. 424, 107 L.Ed.2d 388, the Supreme Court held that an employee who alleged that his union breached its duty of fair representation in intentionally failing to refer him for jobs through the union hiring hall did not have to sue the employer under § 301 in order to press his claim against the union. 493 U.S. at 80-83, 110 S.Ct. at 433-34. The Court explained that a suit against the employer is not a prerequisite to a suit against the union: While in Vaca an allegation that the union had breached its duty of fair representation was a necessary component of the § 301 claim against the employer, the converse is not true here: a suit against the union need not be accompanied by an allegation that an employer breached the contract, since whatever the employer’s liability, the employee would still retain a [fair representation] claim against the union. Id. at 82-83, 110 S.Ct. at 434. Where the union has thus assumed contractual duties" }, { "docid": "5696433", "title": "", "text": "failure to make timely demand for arbitration); Harper v. San Diego Transit Corp., 764 F.2d 663, 669 (9th Cir.1985) (hybrid claim accrued “the day that [employee] re-céived, [union’s] letter that it would not pursue arbitration of [employee’s] discharge”); Taylor v. Ford Motor Co., 761 F.2d 931, 934 (3rd Cir.1985) (“[H]ybrid section 301 action accrues ... when the union .unequivocally refuses to assist [employee]”), cert. denied, 474 U.S. 1081, 106 S.Ct. 849, 88 L.Ed.2d 890 (1986). On the other hand, when a union represents an employee throughout a grievance procedure, á claim challenging the adequacy of that union’s representation normally does not accrue until the dispute resolution process has been completely exhausted. See, e.g., Ghartey, 869 F.2d at 163-64 (when union represented employee throughout grievance and arbitration proceedings, hybrid cause of action does not accrue until “there has been ... decision issued in the arbitration”); Galindo, 793 F.2d at 1509 (“[W]here a duty of fair representation suit seeks to overturn an unfavorable arbitration award on the ground that the union committed errors in the arbitration proceedings, the claim accrues when the employee learns of the arbitrator’s award.”); Dowty, 770 F.2d at 56-57 (hybrid cause of action accrued when employee “learned of arbitrator’s award”); Samples, 755 F.2d at 887 n. 7 (“Because questions as to the union’s breach of its duty of fair representation usually arise in an action to overturn an unfavorable arbitration award, knowledge of the union’s breach can normally be attributed to the employee at the moment when he learns of the unfavorable award.”). Exhaustion of the grievance process is appropriate in such cases because the possibility exists that an employee could be made whole by the grievance process and therefore have no claim against his union even if his union failed to exercise due care. See Ghartey, 869 F.2d at 163. Similarly, in duty-of-fair-representation cases in which the alleged breach of duty arises outside the context of processing a grievance, courts have held that accrual of such a claim can be tolled by an employee’s good faith attempt to exhaust the grievance procedures. Galindo, 793 F.2d at 1509-10" }, { "docid": "12445394", "title": "", "text": "the Union * * * [and] whether a dispute exists is a matter for the Union to decide.’ ” This Court only recently had occasion succinctly to summarize the law with the following statement fully applicable to this case: “The Supreme Court held in Vaca that a union has no mandatory obligation to submit every employee claim to arbitration. 386 U.S. at 191-192, 87 S. Ct. 903. A labor contract must be construed in its totality * * *. [P]art of the consideration for management’s agreeing to the entire contract package was that it could rely on the union to screen grievances and demand arbitration only on those which the union in good faith thought meritorious. ***** * “The Supreme Court in Vaca left no doubt that a union owes its members a duty of fair representation, but that opinion also makes it clear that the union may exercise discretion in deciding whether a grievance warrants arbitration. Even if an employee claim has merit, a union may properly reject it unless its action is arbitrary or taken in bad faith. 386 U.S. at 193, 87 S.Ct. 903.” Moore v. Sunbeam Corp., 459 F.2d 811, 819-820 (7th Cir. 1972). The district court ruled that plaintiffs’ claim that the Union breached its duty of fair representation was unsustainable because “a Union does not breach its duty of fair representation by failing to process untimely and improperly filed grievances.” While in the abstract the quoted proposition is\" true, the district court was not justified in summarily concluding that no breach of the Union’s duty had actually occurred, thus vitiating the complaint. The mere existence of by-law requirements which the employer argues were not fulfilled does not, without more, mean no breach of the duty of fair representation can be established. Even if we treat the employer’s motion to dismiss the complaint as\" converted into one for summary judgment under Fed.R.Civ.P. 12(b), the district court’s ruling cannot stand. Earlier we adverted to the real possibility that the actual reasons behind the Union’s failure to process plaintiffs’ grievances could be wholly extraneous to any procedural" }, { "docid": "15902069", "title": "", "text": "the employer’s compliance with an arbitration award already rendered would raise a strong question as to the adequacy of its representation.” Samples v. Ryder Truck Lines, Inc., 755 F.2d 881, 886 (11th Cir. 1985). The Samples court held that the union’s role as prosecutor of the employee’s grievance implicitly extends to the stage of bringing an action to enforce a favorable arbitration award. Id. This circuit has also recognized that “once [a] claim is taken to arbitration, the union must advocate the employee’s position.” Del Casal v. Eastern Air Lines, Inc., 465 F.Supp. 1254, 1258 (S.D.Fla.1979) (citing N.L.R.B. v. P.P.G. Industries, Inc., 579 F.2d 1057, 1059 (7th Cir.1978). Another court held that this duty “requires a union to ... defend favorable arbitration decisions in Court” by appealing an adverse decision at the district court level. Lofton v. USPS, 592 F.Supp. 36 (S.D.N.Y.1984). In the Fourth Circuit, the union violates its duty of fair representation when it fails to “adequately process” an employee’s grievance. Tufts v. USPS, 431 F.Supp. 484, 490 (N.D.Ohio 1976). Therefore, it is only logical that if the union must advocate the employee’s position vigorously at the arbitration stage and beyond, it must ensure that the arbitration award is enforced for the employee by filing suit if necessary against the employer. If the union breaches this duty and fails to enforce the award, the employee must be allowed to pursue a claim against both the union and the employer. Defendant has argued that their duty was not breached because “mere negligence on the part of a union does not amount to a breach of the duty of fair representation.” Parker v. Connors Steel Co., 855 F.2d 1510, 1519 (11th Cir.1988). Defendant also relied on Fourth Circuit caselaw that “simple negligence, ineffectiveness, or poor judgment is insufficient to establish a breach of the union’s duty ... Rather, the union’s conduct must be ‘grossly deficient’ or in reckless disregard of the member’s right.” Ash v.. United Parcel Service, 800 F.2d 409, 411 (4th Cir. 1986). While those statements are true, they are not viable defenses for Defendant NRLCA in this" }, { "docid": "11165397", "title": "", "text": "Local 819, the Union’s contract interpretations with regard to his grievances were reasonable and are entitled to judicial deference. In the Court’s view, the plaintiff has failed to establish that Local 819 breached its duty of fair representation. The Court finds that the plaintiff has not satisfied the VacaHines test as promulgated by the Supreme Court in Vaca, 386 U.S. at 190, 87 S.Ct. at 916-17 and Hines, 424 U.S. at 567, 96 S.Ct. at 1057-58. Local 819’s decision not to arbitrate the plaintiffs grievances was not arbitrary, discriminatory or made in bad faith, but was based on solid reasoning and union protocol, all in compliance with the Collective Bargaining Agreements. In this regard, the Court notes the settled rule that individual union members have no absolute right to have their grievances taken to arbitration. Vaco, 386 U.S. at 191, 87 S.Ct. at 917; see e.g., Wozniak v. U.A.W., Local 897, 842 F.2d 633, 636 (2d Cir.1988) (holding no breach when union chose not to arbitrate case it felt could not be won); Lapir v. Maimonides Medical Center, 750 F.Supp. 1171, 1179 (E.D.N.Y.1990) (“where ... union has made an informed decision that a grievance is not meritorious, the plaintiff has no right to arbitration”); Tolentino v. Erickson, 525 F.Supp. 812, 816 (E.D.N.Y.1981) (“union had wide discretion to determine in good faith when further pursuit of an individual’s grievance would be fruitless and a drain upon the union’s limited resources”). The Court finds that where a union has made an informed and reasonable decision that a grievance is not meritorious, the plaintiff has no right to compel arbitration. Also, this Court in Camporeale v. Airborne Freight Corp., 732 F.Supp. 358 (E.D.N.Y.1990), granted summary judgment to a union on claims that the union breached its duty in declining to arbitrate the plaintiffs grievance. The Court held that the union’s decision not to pursue formal arbitration did not constitute a breach of its duty of fair representation to its employees. The principles enumerated in Camporeale, are equally applicable in this case. Local 819’s decision not to arbitrate Morris’ claims were informed decisions based" }, { "docid": "283257", "title": "", "text": "Cir.1988). We turn first to the breach of fair representation claim. To establish a prima facie Title VII claim against a union for a breach of its duty of fair representation, a plaintiff must show that (1) the employer violated the collective bargaining agreement with respect to the plaintiff, (2) the union permitted the violation to go unrepaired, thereby breaching the union’s duty of fair representation, and (3) there was some indi cation that the union’s actions were motivated by discriminatory animus. Babrocky v. Jewel Food Co. & Retail Meatcutters Union, Local 320, 773 F.2d 857, 868 (7th Cir.1985). The district court found that York failed to establish the third element — that IBEW was motivated by discriminatory animus in declining to pursue her grievance — in that she failed to submit any evidence demonstrating such motivation on the part of the union or any evidence from which a reasonable jury could find such motivation. York contends that the fact that no other member of the union stood to benefit from IBEWs support of AT & T’s interpretation of the collective bargaining agreement necessarily dictates an inference that discriminatory animus must have motivated the union’s refusal to contest AT & T’s interpretation. This contention is flawed. The collective bargaining agreement entitles IBEW to pursue grievances on any matter “arising with respect to the interpretation and application of this agreement or other terms and conditions of employment.” However, IBEW is not compelled, either under this agreement or under Title VII, to pursue an individual member’s grievance if the union reasonably disagrees with the basis for that grievance. A -union’s statutory duty of fair representation does not oblige it to take action on every grievance brought by every member. Vaca v. Sipes, 386 U.S. 171, 191-92, 87 S.Ct. 903, 917-18, 17 L.Ed.2d 842 (1967). Indeed, if a union could be compelled to take official action on every grievance, irrespective of merit, the union would quickly deplete its resources and credibility; and the arbitration machinery would eventually become overburdened. See id. at 191-92, 87 S.Ct. at 917-18. For more than twenty years, IBEW" }, { "docid": "22312110", "title": "", "text": "meritorious grievance or is perfunctory in its processing of the grievance. Id. We note that a union is allowed considerable latitude in its representation of employees. The grievance and arbitration process is not conducted in a judicial forum and union representatives are not held to strict standards of trial advoca cy.... Cases are uniform in holding that neither negligence on the part of the union nor a mistake in judgment is sufficient to support a claim that the union acted in an arbitrary and perfunctory manner. Harris, 668 F.2d at 1206 (citations omitted). In the present case the employees have failed to create a genuine factual dispute with respect to the grievance procedure and the Union’s handling of their grievances. The employees’ claim is without merit. It is ironic that the employees challenge the Union’s processing of their grievances notwithstanding the fact that the Union pursued all of their grievances through arbitration and received an award on two of the grievances presented to the arbitrator. The employees argue that the Union’s conduct in seeking ratification of the concession agreements also violated its duty of fair representation. See, e.g., Bautista v. Pan American World Airlines, Inc., 828 F.2d 546, 550 (9th Cir.1987) (duty of fair representation encompasses a Union’s conduct in seeking employee ratification of CBA); Anderson v. United Paperworkers International Union, 641 F.2d 574, 578 (8th Cir.1981); DeBoles v. Trans World Airlines, Inc., 552 F.2d 1005, 1018 (3d Cir.), cert. denied, 434 U.S. 837, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977). While we agree that in an appropriate case a fair representation claim may be stated against a union for misrepresenting the terms of an agreement to its membership, we do not believe that in the present case the Union has breached any duty it owes the employees it represents. In the letter urging ratification of the concession agreements the Union accurately reflected its negotiation efforts with the Company and the economic crisis in the steel industry. The employees have failed to show any misrepresentation made by the Union in obtaining ratification of the concession agreements. Taking the facts in" }, { "docid": "23176259", "title": "", "text": "merit as a matter of law, this purpose is not served in allowing the employee to pursue its claim for breach of the duty of fair representation. Indeed, an employee suffers no injury when the union fails to process a meritless grievance. United Steelworkers of America v. NLRB, 692 F.2d 1052, 1058 (7th Cir.1982) (“[s]ince there was no finding that the grievance had merit, it cannot be said that the Union caused any damage_”); Graf, 697 F.2d at 776 (“a union’s failure to represent a worker in the grievance process injures him only if his grievance has merit — only if the collective bargaining agreement has been violated_”). For these reasons, an employee cannot prevail on a fair representation claim based on the union’s failure to process a grievance if the employee’s claim lacks merit. Hines, 424 U.S. at 570-71, 96 S.Ct. at 1059; United Steelworkers, 692 F.2d at 1057; NLRB v. Eldorado Mfg. Corp., 660 F.2d 1207, 1214 (7th Cir.1981) (“[¡liability for failure to process discharge grievances cannot attach unless the grievances would have been meritorious and unless the Union’s failure to process was in bad faith.”). We have already determined that the plaintiffs’ proffered interpretation of the contract lacks merit as a matter of law. Therefore, fortunately for everyone involved, the Steelworkers Union’s actions did not cause the plaintiffs any injury. However, the Union might not be so fortunate the next time around. Nonetheless, because the plaintiffs raised a meritless contract claim, the plaintiffs’ claim that the Steelworkers Union breached its duty of fair representation in failing to arbitrate the plaintiffs’ grievance cannot withstand summary judgment. E. Breach of Contract Claim As we indicated above, in order to prevail on a claim for breach of contract against Schwitzer, the plaintiffs had to demonstrate that the Union violated its duty of fair representation in failing to arbitrate the grievance. As we just explained, the plaintiffs are not able to prevail under such a claim. Moreover, our earlier contract analysis makes it clear that Schwitzer did not breach its contractual obligations with the plaintiffs in failing to award them immediate" }, { "docid": "2450468", "title": "", "text": "72 F.3d 97, 100 (8th Cir.1995)). Viewed in the light most favorable to Buford, the Union’s actions constituted, at most, negligence on its part and not such an egregious failure as to amount to a breach of its duty of fair representation. The Union did not cite to the John Morris case because pursuant to a settlement agreement, it was barred from doing so. Its failure to obtain a copy of Dr. Shanahan’s report was not a critical error when that report did nothing more than concur with Dr. Phillips’s report which was already before the arbitrator. See Smith, 96 F.3d at 1069 (stating that whether a union “should have obtained more records is a matter within the wide range of reasonableness afforded to a union in pursuing a grievance”) (citation omitted). Finally, the Union’s failure to refute the “Edmond” comment and the contention that Buford had once brought a gun to work, while arguably unfortunate, does not rise to the level of egregiousness necessary for a breach of the duty of fair representation. We have cautioned in the past that union representatives are not lawyers, and a case claiming breach of the duty of fair representation is not the same thing as a legal malpractice case or a post-conviction petition claiming ineffective assistance of counsel. See Stevens, 794 F.2d at 377. In sum, there has been no showing that the Union’s conduct in handling Buford’s grievance was arbitrary, discriminatory, or in bad faith. Because there is no genuine issue of material fact as to the Union’s duty of fair representation, we find that summary judgment in favor of the Postal Service was proper on Buford’s claim for breach of the collective bargaining agreement. See Taylor v. Belger Cartage Serv., Inc., 762 F.2d 665, 668 (8th Cir.1985). B. Bivens Claim Buford also asserts a Bivens claim against the Postmaster General, Marvin T. Runyon. In this claim, Buford argues that her Second and Fourth Amendment rights were violated when her supervisor, Carter, came to her house on the evening of July 11, 1995, and took Buford’s gun. We are skeptical that" }, { "docid": "7041914", "title": "", "text": "of § 301 breach of contract actions. Id. at 187, 87 S.Ct. at 915. Vaca inaugurated the duty as a general standard of union conduct for which a union would be in breach when its “conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Id. at 190, 87 S.Ct. at 916. Since Vaca, suits for the breach of the duty of fair representation against the union and § 301 suits against an employer for violation of the collective bargaining agreement have proceeded alongside each other. These so-called hybrid suits, though formally distinct, are inextricably interdependent. Olsen v. United Parcel Serv., 892 F.2d 1290, 1293 (7th Cir.1990); Thomas v. United Parcel Serv., Inc., 890 F.2d 909, 914 (7th Cir.1989). Indeed, Vaca recognized that courts, in order to entertain a § 301 suit against an employer, will first have to consider whether the union has breached its duty of fair representation. 386 U.S. at 187-188, 87 S.Ct. at 915. The reason for this is plain. Most collective bargaining agreements include provisions for the arbitration of a union member’s grievances against his employer and require the union member to pursue grievances through the arbitral channels established in the agreement. When the union bound by an arbitration clause, however, refuses to process the member’s grievance, and this failure is due to the union’s intentional misconduct, Hoffman v. Lonza, Inc., 658 F.2d 519, 521 (7th Cir.1981), then the union member has a cognizable claim for breach of the union’s duty of fair representation. The aggrieved union member may then pursue both claims — the claim for breach of the duty of fair representation against the union, and a § 301 claim for breach of the employer’s contractual obligations under the collective bargaining agreement. Thomas, 890 F.2d at 916-917. Because the courts have required that union members bring hybrid suits if they wish to sue their employers under § 301, Local 597 apparently thinks that the obligation to bring a hybrid fair-representation suit runs in both directions. This is simply not the case. In Breininger v. Sheet Metal Workers" }, { "docid": "9422031", "title": "", "text": "of fair representation; therefore, we held that a union’s negligent failure to file a timely notice of appeal in the grievance procedure was insufficient, by itself, to demonstrate that the union had breached its duty to Hoffman. But the relevant distinction in the case before us is not that between intentional and negligent, grossly negligent, “egregious” or reckless conduct (as in the Hoffman v. Lonza paradigm). Thus, Dahnke, unlike Hoffman, has not alleged that Anderson forgot to pursue his grievance. Hoffman, 658 F.2d at 520, 523; see Graf v. Elgin, Joliet & E. Ry., 697 F.2d at 774, 777-79. Nor has Dahnke argued that Anderson inadequately prepared for the meeting with the union stewards, see, e.g., Camacho v. Ritz-Carlton, 786 F.2d 242, 244-45 (7th Cir.), cert. denied, 477 U.S. 908, 106 S.Ct. 3282, 91 L.Ed.2d 571 (1986), or that he received “perfunctory” representation from union officials. See, e.g., Grant v. Burlington Indus., 832 F.2d 76, 79-80 (7th Cir.1987). Dahnke simply urges that Anderson’s discretionary and presumably non-arbitrary refusal to pursue his grievance to arbitration constitutes a breach of his duty of fair representation. We have already determined that Anderson’s decision not to pursue the claim was well within his discretion not to arbitrate every grievance. We therefore conclude that the district court properly granted summary judgment to the defendants on this claim. B. The Collective Bargaining Agreement Dahnke’s second assertion requires less discussion. Dahnke contends that Stokely violated its collective bargaining agreement with Local 695 by discharging him. He admits in his brief, however, that this contention is conditioned on his ability to demonstrate that the union has violated its duty of fair representation: “If & plaintiff can meet the threshold requirement of showing a violation of the Union’s duty, the plaintiff then has the right to seek to prove the breach of contract action against the employer.” Appellants’ Brief at 19 (emphasis supplied). This is a correct statement of law. When a union has exclusive power under a collective bargaining agreement to invoke the grievance process, an employee may pursue an individual claim only if his union wrongfully refuses" }, { "docid": "22835098", "title": "", "text": "Galindo was a steward. This was a mere “ministerial” act that required no judgment. There is no rational explanation for Peon’s failure simply to write or telephone Stoody. Moreover, the act was severely detrimental to a strong individual interest; had Stoody been notified, Galindo would probably not have been laid off. See Dutrisac, 749 F.2d at 1274 (finding breach of duty of fair representation where union failed to pursue timely a meritorious grievance); Tenorio v. NLRB, 680 F.2d 598, 602 (9th Cir.1982) (finding breach of duty of fair representation where union rejected grievance without hearing employees’ explanation of facts leading to their discharge). Peon’s error is especially egregious in light of the rumors of impending layoffs and Galindo’s repeated queries as to whether Peon had notified Stoody. Although Galindo attempted to retain his job through informal meetings between representatives of Stoody and the Local, grievance proceedings, and arbitration, Peon’s failure to notify Stoody effectively extinguished Galindo’s seniority rights. Accordingly, Peon’s unjustified failure to notify Stoody that Galindo was a steward constitutes “arbitrary” conduct. The district court thus properly held this to be a breach of the Local’s duty of fair representation. D. Presentation of Galindo’s Claim at Arbitration The district court also found that Marthe’s presentation of Galindo’s claim before the arbitrator constituted a breach of the duty of fair representation. This court has repeatedly acknowledged that unions are afforded wide latitude in determining how to handle a grievance; in fact, “a union’s conduct may not be deemed arbitrary simply because of an error in evaluating the merits of a grievance ... or in presenting the grievance at an arbitration hearing. ” Peterson, 771 F.2d at 1254 (emphasis added) (citing Dutrisac, 749 F.2d at 1273); see Ness v. Safeway Stores, Inc., 598 F.2d 558, 560-61 (9th Cir.1979) (per curiam) (no breach where union decided to convene adjustment board with one of its members missing). Thus, the district court’s reliance on “Mr. Marthe’s failure to insist upon written statements” and “his failure to investigate past practice [of stewardship notification] adequately” is misplaced. At worst, these are negligent errors of judgment. Similarly," }, { "docid": "17555477", "title": "", "text": "may exclude a grievant’s personal attorney from an arbitration hearing is an issue of first impression in this circuit. Under the circumstances here—i.e., Baxter’s criminal case had been resolved, he failed to show other employees were treated differently, his attorney had subpoenaed witnesses without notifying UPI, and there was no evidence of a specific need for Smith’s presence—we conclude that such exclusion did not constitute a breach of UPI’s duty of fair representation. See Garcia v. Zenith Elec. Corp., 58 F.3d 1171, 1179-80 (7th Cir.1995) (noting that in “unique context of labor relations,” union’s decision “to disallow the presence of an independently-retained attorney in a particular ease is not, standing alone, enough to show that the union acted arbitrarily”); Castelli v. Douglas Aircraft Co., 752 F.2d 1480, 1483-84 (9th Cir.1985) (“no court has adopted the rule that employees are entitled to independently retained counsel in arbitration proceedings or that the exclusion of such attorneys from arbitration violates the duty of fair representation”; participation of employee’s counsel could “bypass the union and undermine the policy of exclusive representation”); cf. Seymour v. Olin Corp., 666 F.2d 202, 209-10 & n. 5 (5th Cir.1982) (holding union’s failure to pursue grievance, because grievant would not discharge his attorney, was arbitrary and breach of fair-representation duty; noting union may limit participation of private counsel in grievance proceedings, but leaving for “another day” question—-which potential for criminal proceedings complicates—whether union “may prohibit the mere presence of private counsel”). We also conclude the evidence did not show that UPI’s agreement with Whirlpool to decertify the arbitrator they had chosen together under the CBA was discriminatory, irrational, fraudulent, or dishonest. Insofar as Baxter argues that he was harmed by the arbitrator’s disqualification and the resulting delay, we refuse to speculate that the original arbitrator would have ruled in Baxter’s favor and more quickly. Because we conclude UPI was entitled to summary judgment on the fair-representation claim, summary judgment for Whirlpool on the claim for breach of the CBA was also proper. See Smith v. United Parcel Serv., Inc., 96 F.3d 1066, 1069 (8th Cir.1996). We reject as meritless" } ]

[ { "docid": "22659916", "title": "", "text": "cotics charges. He was booked as Linnie Carl McCollan, signed various documents as Linnie Carl McCollan, and was released on bail as Linnie Carl McCollan. Leonard’s bondsman sought and received an order allowing him to surrender his principal and a warrant was issued for the arrest of “Linnie Carl McCollan.” On December 26, 1972, Linnie was stopped in Dallas for running a red light. A routine warrant check revealed that Linnie Carl McCollan was wanted in Potter County, and respondent was taken into custody over his protests of mistaken identification. The Dallas Police Department contacted the Potter County Sheriff’s Department, compared the identifying information on respondent’s driver’s license with that contained in the Potter County arrest records, and understandably concluded that they had their man. On December 30, Potter County deputies took custody of respondent and placed him in the Potter County Jail in Amarillo. He remained there until January 2, 1973, when officials compared his appearance against a file photograph of the wanted man and, recognizing their error, released him. Respondent brought this damages action “pursuant to the Fourteenth Amendment to the United States Constitution and ...[§] 1983.” App. 6. After each party had rested his case, the United States District Court for the Northern District of Texas directed a verdict in favor of Sheriff Baker and his surety, Transamerica Insurance Co., without articulating its reasons. The Court of Appeals for the Fifth Circuit reversed. Characterizing respondent’s cause of action as a “ [§] 1983 false imprisonment action,” the Court of Appeals determined that respondent had made out a prima facie case by showing (1) intent to confine, (2) acts resulting in confinement, and (3) consciousness of the victim of confinement or resulting harm. The question in the court’s view thus became whether Sheriff Baker was entitled to the defense of qualified immunity, which in turn depended on the reason ableness of his failure to institute an identification procedure that would have disclosed the error. Noting that the error would have been discovered if Potter County officials had sent identifying material to Dallas or had immediately upon respondent’s arrival" } ]

[ { "docid": "384311", "title": "", "text": "the fourth amendment requirement of particularity. Moreover, even if the warrant were invalid, it was not the cause of Gero’s arrest. The arrest was precipitated by Phiffer’s assertion that she had just seen Walters driving a blue pickup truck. This was not a situation like that in Powe v. Chicago, 664 F.2d 639, where the plaintiff was stopped for a traffic violation and then arrested because of an outstanding warrant. The police, here, had probable cause to arrest Walters without a warrant. Indeed, in the light of what the police knew about Walters, they would have been derelict in their duties if they had not immediately pursued the vehicle which Walters was supposedly driving. And when the truck was stopped, Phiffer’s identification was confirmed by the remarkable facial resemblance of Gero to the photo that the police had of Walters. That is one of the disadvantages, or perhaps advantages, depending on whose face is being identified, of wearing a full beard and mustache. This clearly was a case of reasonable mistaken identity and the law does not afford the plaintiff any solace. In Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), McCollan was mistakenly arrested pursuant to a facially valid warrant. He brought a section 1983 claim for the intentional failure to investigate and determine that the wrong man was imprisoned. The Court stated: Respondent’s innocence of the charge contained in the warrant, while relevant to a tort claim of false imprisonment in most, if not all jurisdictions, is largely irrelevant to his claim of deprivation of liberty without due process of law. The Constitution does not guarantee that only the guilty will be arrested. Id. at 145, 99 S.Ct. at 2695 (footnote omitted). Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971) involved a mistaken arrest based on probable cause. The question was whether the evidence seized could be used against the real defendant. The Court’s answer is pertinent to this case: Here there was probable cause to arrest Hill and the police arrested Miller in Hill’s apartment, reasonably believing" }, { "docid": "5898023", "title": "", "text": "and walk toward him. • He also requested backup police. When O’Malley approached Hagler, he was angry, raising his voice shouting “this is bulls--t.” In response, Hagler handcuffed O’Malley “for safety reasons, and to further investigate whether there were other occupants in the vehicle ... as well as to verify the validity of his CCW permit, driver’s license, proof of insurance, and registration.” O’Malley claims that he complained to Hagler that the handcuffs were too tight. However, O’Malley admits that he never asked Hagler to loosen the handcuffs. Less than two minutes after the handcuffing, additional police officers arrived who assumed custody of O’Malley. Officer Connie Johnson, with the assistance of another police officer, placed O’Malley in the back of her police vehicle, where O’Malley stayed while the officers searched the Tahoe, confirmed its lawful ownership, verified O’Malley’s concealed-carry permit, and checked his criminal record with the Law Enforcement Information Network (LEIN). During their search of the Tahoe, the police recovered a loaded .45 caliber, semi-automatic handgun in the location specified by O’Malley. In addition, the LEIN check indicated that a warrant had been issued for O’Malley’s arrest by the City of Warren. In view of the arrest warrant, Hagler instructed Johnson to transport O’Malley to the Flint Police Department for pick up by the Warren Police Department. Hagler then left the scene. About two hours later, the Warren Police Department advised Hagler that it had mistaken O’Malley for another individual and that there were no outstanding warrants for O’Malley’s arrest. In response, Hagler called Johnson, who was still at the scene, and ordered her to release O’Malley and return his property. O’Malley had been in custody for approximately two hours before his release. O’Malley alleges that at some point during his custody he asked Officer Johnson to loosen his handcuffs, but she refused to do so. Hagler was unaware of the request. O’Malley filed suit in the Genesee County Circuit Court against the City of Flint and Chief Hagler, alleging violations of various statutory and constitutional rights. O’Malley v. City of Flint, No. 08-11595, 2009 WL 2008480, at *2" }, { "docid": "12677444", "title": "", "text": "opinion is, properly, at pains “to direct the District Court to dismiss Brady’s state-law claims without prejudice for want of federal jurisdiction,” so that any potentially cognizable state-law claims may be asserted in the Massachusetts courts). On the question whether Brady has presented a viable constitutional claim I respectfully disagree with the position announced by this court. On the question whether defendants are entitled to qualified immunity, I respectfully disagree with the position announced by the District Court. This means that I concur in the judgment of this court but not in the court’s opinion. I write separately to explicate the line of thinking that leads me to differ with both courts. I. Is the Brady claim a viable constitutional claim? i This court’s opinion states: “We believe that [the Brady] claim ... is foreclosed by Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979).” In Bakerüie Supreme Court held that a person arrested in conformity with a validly issued warrant who was held in custody for three days by a sheriff who made no real effort to investigate the detainee’s fully justified and readily documentable insistence that, although named in the warrant, he was in fact not the person who committed the offense charged, had no cognizable § 1983 claim against the sheriff for the three days of inappropriate detention. While deeming Baker to be adversely dispositive of the claim advanced in the case at bar, this court recognizes that Brady — and the District Court — have posited a reading of Baker that is not preclusive of the Brady claim: In an effort to escape Baker’s, deadly embrace, Brady urges us to read the Court’s words narrowly. In his view, Baker stands only for the rule that when a person in custody protests his innocence, police officers have no affirmative obligation to investigate. Baker, Brady maintains, does not address situations in which police officers, after an arrest, come to possess “actual knowledge” that the detained person, though named in an outstanding warrant, is a victim of mistaken identities. In such an eventuality, Brady posits," }, { "docid": "23701068", "title": "", "text": "imposing liability against Lt. McCoy for Sanders’ arrest. Lt. McCoy: Illegal Detention Quoting from Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979), the district court dismissed Sanders’ cause of action for failure to investigate on the ground that “[a]n officer executing an arrest warrant is not required by the Constitution to investigate independently every claim of innocence, whether the claim is based on mistaken identity or another such defense.” The district court concluded that once Sanders was lawfully arrested (which he was), Lt. McCoy was under no obligation to embark on an investigation to clear Sanders of the charges. In Baker, an arrestee, stopped for a routine traffic violation, was taken into custody by police when a warrant check revealed that he was wanted on other charges. As it turned out, the officers arrested the wrong man, but did not learn that until three days later when they compared his appearance against a photograph of the wanted man. The police then released the still-incarcerated arrestee. He filed a § 1983 action, alleging that his three day confinement was unconstitutional because the officers had ignored his protestations of innocence. On appeal to our court from a directed verdict in favor of the sheriff, we reversed, holding that the arrestee had made out a prima facie case. McCollan v. Tate, 575 F.2d 509, 512-13 (5th Cir.1978). The Supreme Court disagreed. The Court held that the detention of a person arrested pursuant to a valid warrant for a period of three days did not amount to a cognizable constitutional harm. The Court rejected the arrestee’s argument that the police were obligated to investigate his protestations of innocence or “perform an error-free investigation of such a claim.” 99 S.Ct. at 2695. The Court stated explicitly, however, that “mere detention pursuant to a valid warrant but in the face of repeated protests of innocence will after the lapse of a certain amount of time deprive the accused of ‘liberty ... without due process of law.”’ Id. The three day detention at issue in Baker, however, did not amount to" }, { "docid": "19780132", "title": "", "text": "823 F.2d 167, 168-69 (7th Cir.1987) (plaintiff stated no Fourth Amendment claim when he alleged police arrested him because his name was the same as the alias associated with an outstanding arrest warrant that matched his race and gender, even though the birth date and address were different). Tibbs emphasizes that the traffic warrant had a different middle initial than his, but in Hill the police arrested a man who produced identification showing he had a completely different name than that of the actual suspect. Hill, 401 U.S. at 799, 91 S.Ct. 1106. Tibbs also relies heavily on Sivard v. Pulaski County, 959 F.2d 662, 668 (7th Cir.1992), for the proposition that a defendant officer’s mere denial of knowledge that he had arrested the wrong person is insufficient to sustain summary judgment. But Sivard reached that conclusion only because the defendant officers also admitted they held the plaintiff in custody without charge for seventeen days. Id. Based on the sheer length of Sivard’s preindictment detention, a reasonable jury could have inferred that the defendants were aware his detention was unlawful. The exceptional circumstances present in Sivard are absent here, and Tibbs points to no evidence to support his allegation that Officer Kooistra actually knetu he was arresting the wrong Ronald Tibbs. Indeed, Tibbs’s own statement at the scene is evidence to the contrary; when the officers asked Tibbs about the warrant, he replied that he thought he had taken care of it already. Tibbs’s acknowledgment of the existence of a warrant — the officers could not know it was a different warrant — makes the arrest objectively reasonable. Based on the evidence in the summary judgment record, no reasonable jury could find Officer Kooistra acted unreasonably when he arrested Tibbs. B. False imprisonment — Unreasonable postarrest detention Where a person is lawfully arrested pursuant to a valid warrant, police officers and jailers have no constitutional duty to investigate whether the arrestee is actually the person named in the warrant. Baker v. McCollan, 443 U.S. 137, 143-44, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). This is so because “the probable cause" }, { "docid": "12677457", "title": "", "text": "a narcotics offense, orchestrated matters with such fraternal devotion that he was booked and bailed — and subsequently failed to appear — as Linnie. Wherefore, when, on December 26, 1972, Linnie was pulled over by a Dallas police officer for going through a red light, “[a] routine warrant check revealed that Linnie Carl McCollan was wanted in Potter County, and respondent was taken into custody over his protests of mistaken identification..” 443 U.S. at 141, 99 S.Ct. 2689. For reasons not elaborated on in the Supreme Court’s opinion, or in Justice Stevens’s dissent, notwithstanding the fact that the Dallas Police Department promptly notified the Potter County Sheriffs Department of Linnie’s arrest, four days were to elapse before Linnie was taken from Dallas to Potter County. What the transpired, as the Court narrates it, was this: On December 30, Potter County deputies took custody of respondent and placed him in the Potter County Jail in Amarillo. He remained there until January 2,1973, when officials compared his appearance against a file photograph of the wanted man and, recognizing their error, released him. Ibid. Like the defendant police officers in the case at bar, those who had Linnie Carl McCollan in charge were not “percipient witnesses” of the offense charged against the person in custody: that is, they had no “personal knowledge of [that person’s] innocence.” But Linnie Carl McCollan’s custodians did not conclude that they had to wait for a judicial officer to dismiss the charges and order Linnie released. “[RJecognizing their error,” they “released him.” Of course the Supreme Court did not say that it was the constitutional duty of McCollan’s custodians to release McCollan on “recognizing their error.” That issue — which Brady’s claim presents to this court — -was not before the Baker Court. But it is, I think, of at least passing interest that the Supreme Court’s narrative of the way in which McCollan’s (belated) release from custody was accomplished seems to treat it as a matter of course. It is my submission that the action Lin-nie Carl McCollan’s custodians took to release him when they knew to" }, { "docid": "22157718", "title": "", "text": "issued, by the Cook County Adult Probation Department, on December 20, 1974, for the arrest of “Andrew Powe, a/k/a Ernest Brooks.” This warrant was lodged with the Cook County Sheriff’s Fugitive Warrant Section, and was placed as a “stop order” with the Chicago Police Department, “without adequate specificity to identify the intended arrestee.” Count I, Paragraph 12. On November 25, 1975, the real Andrew Powe was stopped by Chicago police for a traffic offense. The police officers made a routine computer check, via police radio, for warrants outstanding against Powe. This check revealed the “Andrew Powe, a/k/a Ernest Brooks” arrest warrant. Powe was accordingly placed under arrest, was booked, fingerprinted and photographed, and spent the night in jail because he was unable to post the required bond until the following day. Powe appeared in court to answer the probation violation charge on December 1, 1975, and he then explained the circumstances to the judge. The case was continued, to permit the prosecutor to investigate. On December 30, 1975, the prosecutor reported to the judge that Powe’s story was true. Powe was therefore discharged. Three months later, on March 8, 1976, Powe was stopped by Chicago police for speeding. Since he was driving on a traffic ticket at the time, he was taken to the Seventh District Station of the Chicago Police Department to post a $25 bond. While he was at the police station, a routine computer check was made for outstanding warrants, as before, and as before the probation violation warrant turned up. Powe was therefore taken to Central Detention Lockup at 11th and State Streets in Chicago, was booked, fingerprinted and photographed, and spent the night in jail. The following day a Cook County Probation Department employee, who had a photograph of the actual probation violator, informed the Chicago police officers at Central Lockup that Powe was not the man sought in the warrant. The Chicago police refused to release him promptly, however, and instead transported him in a squadrol, with his hands cuffed behind him, back to the Seventh District Station! He was not released from custody" }, { "docid": "22157719", "title": "", "text": "Powe’s story was true. Powe was therefore discharged. Three months later, on March 8, 1976, Powe was stopped by Chicago police for speeding. Since he was driving on a traffic ticket at the time, he was taken to the Seventh District Station of the Chicago Police Department to post a $25 bond. While he was at the police station, a routine computer check was made for outstanding warrants, as before, and as before the probation violation warrant turned up. Powe was therefore taken to Central Detention Lockup at 11th and State Streets in Chicago, was booked, fingerprinted and photographed, and spent the night in jail. The following day a Cook County Probation Department employee, who had a photograph of the actual probation violator, informed the Chicago police officers at Central Lockup that Powe was not the man sought in the warrant. The Chicago police refused to release him promptly, however, and instead transported him in a squadrol, with his hands cuffed behind him, back to the Seventh District Station! He was not released from custody until “many hours later.” Following the second arrest Powe filed this lawsuit. Thereafter, he was arrested twice more on the same warrant, once in January of 1977 and again on November 5, 1977. In this lawsuit, he seeks damages and injunctive relief under section 1983, and under pendent state counts of negligence and respondeat superior, for all four of his arrests, and for his retention in custody by the Chicago police, on the occasion of his second arrest, after they were notified that he was not the man sought under the warrant. II. Our task is to determine whether the complaint’s allegations, outlined above, suffice to state a cognizable claim for relief against the city and the county under section 1983. Both defendants are municipalities. The Supreme Court set forth the elements of a civil rights claim against a municipality in Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Under Monell, a section 1983 plaintiff must show (1) that he or" }, { "docid": "15695763", "title": "", "text": "MEMORANDUM OPINION AND ORDER GETZENDANNER, District Judge. On August 2, 1979, defendant McKittuick, a Chicago police officer, stopped plaintiff Bobby Williams for a traffic violation. The defendant initiated a computerized warrant search. This was a routine police procedure. The warrant search revealed that an arrest warrant had been issued in the name of “Bobby Williams” for a series of parking violations. The parties now agree that the warrant did not apply to the plaintiff but to a different Bobby Williams. When informed by Officer McKittuick of the warrant’s existence, plaintiff immediately protested that he was a victim of mistaken identity. Though the complaint is vague on this point, plaintiff appears to allege that at the time of the arrest Officer McKittuick was aware of various pieces of information describing the wanted “Bobby Williams,” all of which information conflicted with information the defendant had concerning plaintiff. Plaintiff was nevertheless arrested and taken to a police lock-up. There he remained for seventy-two hours during which time the defendant City of Chicago allegedly “refused and/or thwarted efforts on the part of members of the plaintiff’s family to post bond and obtain his release.” Complaint ¶ 8. Eventually plaintiff was brought before a magistrate and released. Claiming that both the original arrest and later denial of bail were unconstitutional, plaintiff now seeks damages from Officer McKittuick and the City. The defendants have moved to dismiss the complaint for failure to state a claim upon which relief can be granted. This motion is granted as to the allegations against the City. The motion is denied, however, as to the allegations concerning Officer McKittuick. I. Original Arrest The defendants vigorously contend that the initial arrest and detention were constitutionally proper, citing Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). In Baker, the plaintiff was similarly taken into custody when a warrant search following a traffic citation informed the arresting officer of the existence of an outstanding warrant. In actuality, the warrant was intended for the plaintiff’s brother. At the time of the brother’s prior arrest, however, he had been carrying a" }, { "docid": "21990505", "title": "", "text": "innocence. See, e.g., Askew v. Chicago, 440 F.3d 894 (7th Cir.2006); Gramenos v. Jewel Companies, Inc., 797 F.2d 432 (7th Cir. 1986). All the police need is probable cause, which is well short of certainty. Like a grand jury, see United States v. Williams, 504 U.S. 36, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992), police may act on the basis of inculpatory evidence without trying to tote up and weigh all exculpatory evidence. Perhaps the police failed to live up to their obligations under the City’s procedures. But Monell establishes that an operational error does not support municipal liability. Hernandez contends that, if double checking (which the City requires) does not prevent mistakes, then the Constitution must require triple checking. That argument, however, was rejected in Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), which held that an arrest based on a mistaken identification does not lead to liability in damages if the suspect is taken to court promptly. Baker, like this case, concerned an arrest of one person on a warrant meant for someone else. Hernandez insists that Baker is not controlling because that warrant gave the full name of the person who was to be arrested (a mistake had been made in filling out the warrant), while “Emiliano” and “Enrique” differ. But that misses the point: Chicago’s police thought (and not without reason, given the identical birthdates and physical characteristics) that these were two names for one person. Baker is not limited to same-name misidentifications. The Supreme Court established a broader constitutional rule: Absent an attack on the validity of the warrant under which he was arrested, respondent’s complaint is simply that despite his protests of mistaken identity, he was detained in the Potter County jail from December 30, when Potter County deputies retrieved him from Dallas, until January 2, when the validity of his protests was ascertained. Whatever claims this situation might give rise to under state tort law, we think it gives rise to no claim under the United States Constitution. Respondent was indeed deprived of his liberty for a period" }, { "docid": "12083508", "title": "", "text": "at 9:00 a.m. on October 23, 1986. While this document certainly strengthened her claim of mistake, it was not sufficient to require further investigation. Since the error was made by the judge who set the date, not by the person who issued the warrant, it is unlikely that the mistake would have been discovered by any investigation that did not include examining that particular judge’s daily records. Of course, a more sensitive group of public employees might have made the additional investigation, but the Constitution did not require it. Baker v. McCollan is the controlling case. There a man was arrested and held for several days under a warrant that was valid on its face. The warrant was intended for McCollan’s brother, however, and McCollan was released when the mistake was discovered. The brother had given the police McCollan’s driver’s license when arrested. The Supreme Court found that McCollan’s claim was based on the alleged intentional failure of the authorities to investigate his claim of innocence after he was incarcerated. The decision states a rule, however, with respect to the duty to investigate that applies to an arresting officer as well as to custodians following arrest. The Court pointed out that the Constitution does not guarantee that only the guilty will be arrested; police and correction employees may rely on facially valid arrest warrants even in the face of vehement claims of innocence by reason of mistaken identity or otherwise. 443 U.S. at 145, 99 S.Ct. at 2695. The district court found an implication in the Supreme Court’s statement that an arresting officer is not required to conduct an independent investigation into every claim of innocence, that in exceptional cases such as this one the Constitution does require such an investigation. While the language clearly supports an implication that there may be cases where such an investigation is required, it is not a sufficient statement to satisfy the requirement that the right relied upon must be “clearly established.” We have found no case from the Supreme Court or this court holding an arresting officer with a valid warrant, or a" }, { "docid": "12677409", "title": "", "text": "Baker stands only for the rule that when a person in custody protests his innocence, police officers have no affirmative obligation to investigate. Baker, Brady maintains, does not address situations in which police officers, after an arrest, do investigate and come to possess “actual knowledge” that the detained person, though named in an outstanding warrant, is a victim of mistaken identities. In such an eventuality, Brady posits, the Constitution requires the officers to release the detainee without further ado. The district court endorsed this cramped reading of Baker and refused to grant the appellants’ motion for summary disposition because it perceived a factual dispute as to whether they had actual knowledge of Brady’s innocence. See Brady, 24 F.Supp.2d at 134-35. To support this ruling, Brady cites to Gay v. Wall, 761 F.2d 175 (4th Cir.1985). There, a warrant had issued for Gay’s arrest after two eyewitnesses had identified him as the perpetrator of a crime. See id. at 176. Acting upon the warrant, the police arrested Gay, kept him in custody for several weeks, and released him only after they had arrested someone else. See id. Gay sued under section 1983, alleging that, as early as the day of the arrest, the police officers were certain that he was innocent and had so stated, yet nonetheless kept him in custody for several weeks. See id. Thus, Gay asserted, the officers had “knowingly, unlawfully, violently, and without probable cause” arrested him, depriving him of an array of constitutional rights. See id. (internal quotation marks omitted). Although the district court had granted summary judgment in favor of the defendants on the authority of Baker, a panel of the Fourth Circuit reversed, maintaining that Baker does “not involve actual knowledge of the defendant’s innocence, but rather the failure to take affirmative steps to determine his innocence.” Id. at 178-79, 99 S.Ct. 2689. Thus, the panel concluded, if the plaintiffs factual allegations could be proven, “the defendants’ conduct may well be actionable under § 1983.” Id. at 179, 99 S.Ct. 2689. We do not believe that Brady’s reliance on Gay removes his case from" }, { "docid": "4401314", "title": "", "text": "Court acknowledged that respondent had been deprived of liberty when he was falsely detained. However, the Court noted that the Constitution does not prohibit all deprivations of liberty, it only forbids those which are accomplished without due process of law. In this case, the protection provided by the Fourth Amendment’s probable cause requirement was all that due process required: Absent an attack on the validity of the warrant under which he was arrested, respondent’s complaint is simply that despite his protests of mistaken identity, he was detained in ... jail ... until ... the validity of his protests was ascertained. Whatever claims this situation might give rise to under state tort law, we think it gives rise to no claim under the United States Constitution. Baker, 443 U.S. at 143-44, 99 S.Ct. at 2694. As the above quoted passage indicates, and as defendants recognize, Baker left open the possibility that a person who is falsely imprisoned may state a claim under 42 U.S.C. § 1983 if he attacks the validity of the warrant which led to his arrest. See, e.g., United States v. Doe, 703 F.2d 745 (3rd Cir.1983) (warrant describing its subject only as “John Doe a/k/a Ed” is constitutionally deficient, and this deficiency is not cured by the arresting officer’s personal knowledge that the arrestee is the person for whom the warrant was intended); Powe v. Chicago, 664 F.2d 639 (7th Cir.1981) (allegations in complaint that the warrant lacked adequate specificity to identify the intended arrestee were sufficient to withstand a motion to dismiss under Baker). However, plaintiff makes no such allegations in the instant case. The sole mention of the warrant in the complaint is in Paragraph 11, where plaintiff alleges that he “was advised by the police officers that there were two outstanding warrants for his arrest and that he was being arrested and taken into custody.” In fact, plaintiff implicitly admits that the warrant under which he was arrested was facially valid as to him when he alleges that “his name was the same or similar to the criminal being sought.” Complaint ¶ 12. See" }, { "docid": "23701067", "title": "", "text": "they had chosen incorrectly, and becoming hostile ... when., a witness refused to cooperate”), this is not such a case. Lt. McCoy undisputedly informed the issuing judge of all the facts known to him at the time; the exculpatory evidence came to Lt. McCoy’s attention after the arrest. Thus, Sanders cannot claim that Lt. McCoy recklessly or intentionally omitted mention of material facts that were “clearly critical” to the probable cause determination. See Hale v. Fish, 899 F.2d 390, 400 & n. 3 (5th Cir.1990) (plaintiff proved constitutional violation by showing that affidavit supporting arrest warrant contained critical omissions that would have negated probable cause); accord DeLoach v. Bevers, 922 F.2d 618, 622-23 (10th Cir.1990) (same), cert. denied, — U.S. -, 112 S.Ct. 65, 116 L.Ed.2d 41 (1991); Olson v. Tyler, 771 F.2d 277, 281 n. 5 (7th Cir.1985) (same). Nothing in this record suggests that “the deliberations of the [issuing judge] were in some way tainted by the actions of the defendant.” See Hand, 838 F.2d at 1428. We find no basis, therefore, for imposing liability against Lt. McCoy for Sanders’ arrest. Lt. McCoy: Illegal Detention Quoting from Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979), the district court dismissed Sanders’ cause of action for failure to investigate on the ground that “[a]n officer executing an arrest warrant is not required by the Constitution to investigate independently every claim of innocence, whether the claim is based on mistaken identity or another such defense.” The district court concluded that once Sanders was lawfully arrested (which he was), Lt. McCoy was under no obligation to embark on an investigation to clear Sanders of the charges. In Baker, an arrestee, stopped for a routine traffic violation, was taken into custody by police when a warrant check revealed that he was wanted on other charges. As it turned out, the officers arrested the wrong man, but did not learn that until three days later when they compared his appearance against a photograph of the wanted man. The police then released the still-incarcerated arrestee. He filed a §" }, { "docid": "12677456", "title": "", "text": "are — or at least may be — pragmatically very different. Thus — subscribing in this respect to the court’s argument — I find it very difficult to posit a scenario in which a claim of “lack of specific intent” could, within a few or even several days of dedicated police investigation, be so painstakingly explored, intricately unraveled and subtly evaluated as to lead the investigating officers to have absolute assurance of the innocence of the person in custody. But I have little difficulty in positing such a scenario with respect to a claim of “mistaken identities.” And I do not have to resort to putting together a hypothetical case. Our doctrinal raw materials offer us a real world case — the case of Baker v. McCollan. Linnie Carl McCol-lan — so the Court narrated — was victimized by his brother Leonard. Leonard fabricated a copy of Linnie’s driving license with Leonard’s photograph superimposed on it. With the aid of this counterfeit identification, Leonard, when arrested in October of 1972 in Potter County, Texas, for a narcotics offense, orchestrated matters with such fraternal devotion that he was booked and bailed — and subsequently failed to appear — as Linnie. Wherefore, when, on December 26, 1972, Linnie was pulled over by a Dallas police officer for going through a red light, “[a] routine warrant check revealed that Linnie Carl McCollan was wanted in Potter County, and respondent was taken into custody over his protests of mistaken identification..” 443 U.S. at 141, 99 S.Ct. 2689. For reasons not elaborated on in the Supreme Court’s opinion, or in Justice Stevens’s dissent, notwithstanding the fact that the Dallas Police Department promptly notified the Potter County Sheriffs Department of Linnie’s arrest, four days were to elapse before Linnie was taken from Dallas to Potter County. What the transpired, as the Court narrates it, was this: On December 30, Potter County deputies took custody of respondent and placed him in the Potter County Jail in Amarillo. He remained there until January 2,1973, when officials compared his appearance against a file photograph of the wanted man and," }, { "docid": "11565090", "title": "", "text": "1983 claims. Accordingly, we conclude that the appropriate statute of limitations for all such claims brought in federal court in Colorado is the residuary statute, Colo.Rev. Stat. § 13 — 80—108(l)(b) (1973), which applies a three year period to “[a]ll other actions of every kind for which no other period of limitation is provided by law.” Under this statute, McKay’s section 1983 claims are timely. II. THE ARRESTS Having determined that McKay’s constitutional claims were timely filed, we next address the district judge’s alternate holding that McKay failed to state a claim upon which relief may be granted. The court stated that McKay’s “§ 1983 and 14th Amendment claims fall within the Supreme Court’s proscription in Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979),” rec., vol. I, at 119, but did not set out the facts and analysis upon which this conclusion was based. In Baker, the plaintiffs brother had been arrested, booked, and released on bail in Potter County, Texas, while masquerading as the plaintiff and using his driver’s licence. Bail subsequently was revoked, and an arrest warrant was issued for the plaintiff’s brother in the plaintiff’s name. When the plaintiff was stopped in Dallas for a traffic violation, a routine check revealed the warrant in the plaintiff’s name and he was arrested despite his protests of mistaken identity. The plaintiff was held by the Dallas police four days, and then transferred to the Potter County jail, where he was held another four days before officials recognized the error and released him. The plaintiff brought a section 1983 claim against the Potter County sheriff for “ ‘the intentional failure to investigate and determine that the wrong man was imprisoned.’ ” Baker, 443 U.S. at 143, 99 S.Ct. at 2694 (quoting Brief for Respondent at 12). The plaintiff did not challenge the initial arrest but only the subsequent continuing incarceration. Moreover, the plaintiff did not allege that the state officials intentionally had continued to detain him knowing that the arrest warrant named the wrong man. The Fifth Circuit concluded that the plaintiff had stated a" }, { "docid": "22989152", "title": "", "text": "Duckett was driving because of Duckett’s failure to dim his headlights. After stopping Duckett, Hamilton ran a computer check which revealed the warrant for Duckett’s arrest. Duckett protested that the warrant had been withdrawn but he was nevertheless arrested pursuant to a warrant issued by Williamson County. Because the warrant was facially valid, Hamilton had probable cause to arrest Duckett. The warrant under which Duckett was arrested and detained met the standards of the Constitution. See Baker v. McCollan, 443 U.S. 137, 142-43, 99 S.Ct. 2689, 2694, 61 L.Ed.2d 433 (1979) (requires a fair and reliable determination of probable cause as a condition for deprivation of liberty); see also United States v. McDonald, 606 F.2d 552, 553-54 (5th Cir.1979) (NCIC printout indicating an outstanding warrant suffices to establish probable cause for that person’s arrest); United States v. Roper, 702 F.2d 984, 989 (11th Cir.1983) (officer had probable cause to arrest where officer radioed NCIC and learned of warrant). Based on information known to Hamilton— including Duckett’s protestations that the warrant had been withdrawn — we find that Hamilton’s actions in arresting Duckett were objectively reasonable. Duckett was then taken to the police station, where, upon seeing Officer Newsom, he inquired as to the validity of the arrest warrant. Newsom responded to Duckett’s inquiry by saying that he would check on the warrant the next morning. Later that evening, Hamilton contacted Duckett’s mother who told him that the warrant had been withdrawn. Acting on this information, Hamilton sought to ascertain the validity of this information by obtaining a teletyped confirmation from Williamson County. Indeed, the confirmation showed an outstanding warrant for Duckett’s arrest. We conclude — based on defendants’ knowledge concerning the warrant’s validity during this period of Duckett’s detention — that defendants were objectively reasonable in not releasing him. The following morning, on June 3, the police officers obtained a teletyped confirmation from Williamson County which stated “RECEIVED A WARRANT RECALL THIS MORNING ON THIS WARRANT WANTED TO ADVISE YOUR DEPT TO CANCEL.” Based on this information, the police officers promptly released Duckett from custody. We find that the defendants’" }, { "docid": "29844", "title": "", "text": "COFFIN, Senior Circuit Judge. On November 10, 2000, appellant Cecilio Peña-Borrero was arrested by officers of the Puerto Rico Police Department on a valid warrant. He was released the same day after posting a $300 bond. Nearly six weeks later, on December 21, he was awakened at his home in the middle of the night and arrested again; the warrant carried by the officers was facially identical to the earlier document but was no longer active because of its prior execution. Despite his protests of a mistake, and his display of documents showing the earlier arrest and release, the officers took him into custody and transported him to police headquarters. He was released later that morning. Appellant subsequently filed this action, claiming civil rights violations under federal and Commonwealth law. The district court concluded that the complaint failed to state a viable claim for relief and thus granted defendants’ motion to dismiss. We now vacate the dismissal and remand the case for further proceedings. I. Background We summarize the facts and allegations set forth in the complaint. When police officers arrived at appellant’s home at approximately 3:30 a.m. on December 21, 2000, he and his two young children, Orlando and Astry Peña-Ayala, were asleep. Appellant heard a loud noise in the yard and looked out to see eight to ten police officers gathered there. Informed that the officers had an arrest warrant, appellant asked if it involved “the Sabana Grande or Mayaguez case” and reported that the warrant already had been executed. Two officers, one of whom was identified as Captain Santiago, repeated the instruction for appellant to come outside. As he opened the door to comply, officers entered the house, pushed appellant’s arms behind his back, and handcuffed him in front of the two children. In the course of the arrest, he re-injured his ribs and back, which previously had been injured in a car accident. Once outside, appellant told the officers that he had in the trunk of his car a copy of the executed arrest warrant and a receipt for the bond that he had posted to" }, { "docid": "12677408", "title": "", "text": "person designated in the default warrant, the troopers went to great pains to gather information bearing on .his situation, tried ‘to assist in securing his prompt release, and arraigned him before an impartial magistrate at the earliest opportunity. Under these circumstances, there is no foundation for a claim that Brady’s post-arrest rights were abridged. Viewed through the Baker prism, this conclusion effectively ends the matter. Because, under parallel circumstances, the Supreme Court pronounced a three-day detention as failing to constitute a .deprivation of liberty without due process, it would take circumstances much more egregious than Brady’s for us to conclude that a weekend detention of approximately thirty-six hours, accompanied by a concerted effort on the part of the police to secure the detainee’s release, resulted in a wrong of constitutional dimensions. Accord Sanchez v. Swyden, 139 F.3d 464, 468-69 (5th Cir.1998) (rejecting section 1983 claim premised on similar factual circumstances on the authority of Baker). In an effort to escape Bakers deadly embrace, Brady urges us to read the Court’s words narrowly. In his view, Baker stands only for the rule that when a person in custody protests his innocence, police officers have no affirmative obligation to investigate. Baker, Brady maintains, does not address situations in which police officers, after an arrest, do investigate and come to possess “actual knowledge” that the detained person, though named in an outstanding warrant, is a victim of mistaken identities. In such an eventuality, Brady posits, the Constitution requires the officers to release the detainee without further ado. The district court endorsed this cramped reading of Baker and refused to grant the appellants’ motion for summary disposition because it perceived a factual dispute as to whether they had actual knowledge of Brady’s innocence. See Brady, 24 F.Supp.2d at 134-35. To support this ruling, Brady cites to Gay v. Wall, 761 F.2d 175 (4th Cir.1985). There, a warrant had issued for Gay’s arrest after two eyewitnesses had identified him as the perpetrator of a crime. See id. at 176. Acting upon the warrant, the police arrested Gay, kept him in custody for several weeks, and" }, { "docid": "1364880", "title": "", "text": "and under shorts. The guards examined his backside and his pants, without touching him, and then permitted Hill to pull up his shorts and trousers. This search procedure was apparently in accordance with procedures applied to all prisoners in the jail. Shortly thereafter Hill was released when his wife arrived and posted bail. Five days later the county court called Hill and told him that a mistake had been made and that he could come to the station and claim his bond. I Hill argues that by failing to check the validity of the warrant when requested to do so, Officer Bogans violated his civil rights. We disagree. Unless a warrant is facially invalid an officer has no constitutional duty to independently determine its validity. See Baker v. McCollan, 443 U.S. 137, 145-46, 99 S.Ct. 2689, 2694-95, 61 L.Ed.2d 433 (1979) (“The Constitution does not guarantee that only the guilty will be arrested____ [W]e do not think a sheriff executing an arrest warrant is required by the Constitution to investigate independently every claim of innocence, whether the claim is based on mistaken identity or a defense such as lack of requisite intent.”). In judging the immunity of Officer Bogans we use an objective standard of good faith. Harlow v. Fitzgerald, 457 U.S. 800, 815-19, 102 S.Ct. 2727, 2737-39, 73 L.Ed.2d 396 (1982). Bogans acted reasonably in relying on routine police procedures for establishing the existence of an outstanding warrant. Bogans should not be held responsible for the failure of county personnel to clear the warrant from the records. II Hill asserts against the City and County of Denver that the search at the jail violated his Fourth Amendment right to be free from unreasonable searches and seizures. In Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the Supreme Court held that routine strip searching of pretrial detainees is not a per se violation of the Fourth Amendment. The Court stated that determining the propriety of a strip search “requires a balancing of the need for the particular search against the invasion of personal rights that" } ]

[ { "docid": "18931289", "title": "", "text": "Owen v. Watson, 157 Tenn. 352; 8 S.W. (2d) 484, and hence whether, short of necessity, the trust operated to relieve her of any natural onus. We think this falls far short of being a substantial economic benefit to her, comparable with that in Burnet v. Wells, 289 U.S. 670; cf. Edmund O. Schweitzer, 30 B.T.A. 155. Whatever power Congress may have, as supported by that decision, to tax such income to the settlor, the language of section 167 does not purport to exercise it. It is also plain that the settlor had not, during the taxable years in question, the power to revest in herself any part of the corpus, and hence, that section 166 is not applicable. Langley v. Commissioner, 61 Fed. (2d) 796. Reviewed by the Board. Judgment will be entered tender Rule BO. Seawell, Adams, and TuRNER dissent. SEC. 167. INCOME FOR BENEFIT OF GRANTOR. Where any part of the income of a trust may, in the discretion of the grantor of the trust, either alone or ill conjunction with any person not a beneficiary of the trust, be distributed to the grantor or be held or accumulated for future distribution to him, or where any part of the income of a trust is .or may be applied to the payment of premiums upon policies of insurance on the life of the grantor (except policies of insurance irrevocably payable for the purposes and in the manner specified in section 23 (n), relating to the so-called “charitable contribution” deduction), such part of the income of ti' t trust shall be included in computing the net income of the grantor. SEC. ICO. REVOCABLE TRUSTS. Where the grantor of a trust has, at any time during the taxable year, either alone or in conjunction with any person not a beneficiary of the trust, the power to revest in himself title to any part of the corpus of the trust, then the income of such part of the trust for such taxable year shall be included in computing the net income of the grantor. Muedock, concurring: I fully approve of" } ]

[ { "docid": "3898298", "title": "", "text": "a more substantial interest than Mrs. Fulham here, and, according to the court, “in any event would receive the corpus if he survived the petitioner”, the grantor. In the case at bar, it having been concluded that Mrs. Fulham has not a substantial adverse interest, there is no doubt that the power vested in the committee, subject to her veto under Clause Fifth, as amended, is a power to revest title of the corpus in the grantor within the meaning of Section 166. Therefore, our decision in Higgins v. White, 1 Cir., 93 F.2d 357, 358, is not now relevant, because in that case the power which the trust deed vested in the grantor and his co-trustees to revest the corpus in the grantor if “the Trustees shall deem it wise so to do” was held to be a fiduciary power subject to the control of a court of equity, and not an absolute and unconditional power vested in the grantor either alone or in conjunction with the other trustees. Upon appraisal of the trust instrument against a background of realities, we are convinced that this is a typical arrangement, falling within Section 166, where the grantor retains the controlling hand over something he has seemed to give away. In the view we take, it is unnecessary to consider alternative contentions of the Commissioner under Section 166 and Section 167 of the Revenue Act, 26 U.S.C. A.Int.Rev.Code §§ 166, 167. The decision of the Board of Tax Appeals is affirmed. Section 166 of the Revenue Act of 1932, 47 Stat. 221, 26 U.S.O.A.Int.Rev. Acts, provided as follows: “Revocable Trusts “Where at any time [during the taxable year] the power to revest in the grantor title to any part of the corpus of .the trust is vested— “(1) in the grantor, either alone or in conjunction with any person not having a substantial adverse interest in the disposition of such part of the corpus or the income therefrom, or “(2) in any person not having a substantial adverse interest in the disposition of such part of the corpus or the income" }, { "docid": "9829911", "title": "", "text": "end of any such calendar year, nor shall there be power to revest in the [grantor] any part of the corpus of this trust during any such calendar year, but that the latter power shall arise and come into existence only after the end of any such calendar year * * * The third paragraph provides that upon the termination of the trust all property and securities constituting the corpus shall belong absolutely to and shall vest immediately in. the grantor. The indenture also provides that if the grantor does' not exercise her powér of revocation the trust shall terminate upon the death of Conklin if he shall predecease the grantor, or upon the death of the grantor if she shall predecease Conklin. The taxpayer gave no notice of revocation of any of the trusts prior to or during the calendar year 1933.- The trusts were in force during the whole of the calendar year 1934 and the beneficiaries received the income from the trusts during that year. The Commissioner contends that the income from the trusts for the taxable year 1934 was attributable and taxable to the taxpayer by virtue of the provisions of Section 166 of the Revenue Act of 1934, c. 277, 48 Stat. 680, 729, 26 U.S.C.A. Int. Rev.Acts, page 727. Section 166 of the Revenue Act of 1934 provides: “Where at any time the power to revest in the grantor title to any part of the corpus of the trust is vested— “(1) in the grantor, either alone or in conjunction with any person not having a substantial adverse interest in the disposition of such part of the corpus or the income therefrom, or “(2) in any person not having a substantial adverse interest in the disposition of such part of the corpus or the income therefrom, then the income of such part of the trust shall be included in' computing the net income of the grantor.” It will be observed that the power to revest the grantor with title to the corpora of the trusts is in her alone; that the power to revest" }, { "docid": "7815273", "title": "", "text": "the Revenue Act of 1932 and comparable sections of prior revenue acts provided that where a grantor had “at any time during the taxable year” the power to revest in himself title to any part of the corpus of a trust, the income-from such part of the corpus should be included in tbe grantor’s income. In ruling as to tbe taxability of income from a trust created in 1933 and amended in April 1934 to delete a provision reserving to tbe grantor tbe right to revoke tbe trust upon a year and a day’s notice, respondent in G.C.M. 18972, supra, stated: Attention will first be given to tbe question whether any part of the income of the trusts is taxable to the grantor because of the provision originally contained in paragraph 3 of the trust instruments (deleted by the amendment of April _, 1934) giving the grantor the power to revoke the trusts upon a year and a day’s notice. Since the trusts were not revocable “during the taxable year” 1933, the trust income for that year was not taxable to the grantor under section 166 of the Revenue Act of 1932. (See G.C.M. 11640, C.B. XII-1, 144 (1933), and cases cited therein.) However, since the phrase “during the taxable year” does not appear in section 166 of the Revenue Act of 1934, it is held that the income from the trusts for the period January 1 to April _, 1934 (the date on which the trusts became irrevocable), is taxable to the grantor under the Revenue Act of 1934. Cf. J. H. Anderson, 30 B.T.A. 1275 (1934), and George 8. Gaylord, supra. In tbe instant case respondent contends that if the transfers to the trusts here involved are considered under section 673(a) of the Internal Revenue Code of 1954 to have been made on tbe date the trusts were created, tbe income of tbe trusts, even for tbe years subsequent to their amendment, is taxable to petitioners under tbe provisions of tbe Code with respect to revocable trusts. Respondent argues that if after July 30,1954, these trusts are to" }, { "docid": "9829912", "title": "", "text": "the trusts for the taxable year 1934 was attributable and taxable to the taxpayer by virtue of the provisions of Section 166 of the Revenue Act of 1934, c. 277, 48 Stat. 680, 729, 26 U.S.C.A. Int. Rev.Acts, page 727. Section 166 of the Revenue Act of 1934 provides: “Where at any time the power to revest in the grantor title to any part of the corpus of the trust is vested— “(1) in the grantor, either alone or in conjunction with any person not having a substantial adverse interest in the disposition of such part of the corpus or the income therefrom, or “(2) in any person not having a substantial adverse interest in the disposition of such part of the corpus or the income therefrom, then the income of such part of the trust shall be included in' computing the net income of the grantor.” It will be observed that the power to revest the grantor with title to the corpora of the trusts is in her alone; that the power to revest is to be exercised at the time specified in the indentures, namely within the preceding calendar year (except for the last five days thereof); and that therefore the trusts are within the literal provisions of Section 166 of the Revenue Act of 1934. It is also clearly apparent that the income from the trusts for any years subsequent to 1934 would be taxable to the taxpayer, for if she has failed to take the necessary steps in 1934 to revoke the trusts for the year 1935 she must be deemed to have elected not to avail herself of the income. The taxpayer points out, however, that Section 166 of the Revenue Act of 1928, 45 Stat. 840, and Section 166 of the Revenue Act of 1932, 47 Stat. 221, 26 U.S.C.A. Int.Rev.Acts, pages 543, 727, in effect when the trusts respectively were created and continuing until the 1934 Act came into effect, contain the phrase “during the taxable year” placed directly after the phrase “at any time” and that the phrase first referred to was" }, { "docid": "7815274", "title": "", "text": "that year was not taxable to the grantor under section 166 of the Revenue Act of 1932. (See G.C.M. 11640, C.B. XII-1, 144 (1933), and cases cited therein.) However, since the phrase “during the taxable year” does not appear in section 166 of the Revenue Act of 1934, it is held that the income from the trusts for the period January 1 to April _, 1934 (the date on which the trusts became irrevocable), is taxable to the grantor under the Revenue Act of 1934. Cf. J. H. Anderson, 30 B.T.A. 1275 (1934), and George 8. Gaylord, supra. In tbe instant case respondent contends that if the transfers to the trusts here involved are considered under section 673(a) of the Internal Revenue Code of 1954 to have been made on tbe date the trusts were created, tbe income of tbe trusts, even for tbe years subsequent to their amendment, is taxable to petitioners under tbe provisions of tbe Code with respect to revocable trusts. Respondent argues that if after July 30,1954, these trusts are to be viewed as trusts in which tbe grantors did not have “at any time” tbe power to revest in themselves “title to” tbe corpus, such interpretation must rest on tbe theory that tbe amendment of July 30, 1954, making the trusts irrevocable in effect created new trusts with a transfer at that time of the trust corpus thereto so that the grantors had a reversionary interest in the corpus as of the inception of the trust which would take effect in possession or enjoyment within 10 years commencing with the date of the transfer, thus requiring that the grantors be treated as the owners of the trusts under section 673(a) of the Internal Revenue Code of 1954. Neither party has called our attention to any case dealing with this question in applying the provisions of the income tax laws. In a number of cases involving gift tax, it has been held that property transferred in trust becomes subject to gift tax only when the trust becomes irrevocable. Newman v. Commissioner, supra, and cases cited therein." }, { "docid": "1516661", "title": "", "text": "amended by the Trustor on or after the first day of January in any year but only upon condition that and provided the Trustor shall in the preceding calendar year have notified in writing the trustees of his intention so to revoke, alter and/or amend this instrument.” The total net income of the trustees for the year 1928 was $34,710.67, of 'which amount $26,520.07 was payable to the life beneficiary, and the balance of $8,190.60 was added to the principal of the trust fund pursuant to certain provisions of the trust. The Commissioner included in the plaintiff’s taxable income the entire amount of $34,710.67. The action of the Commissioner was based upon section 166 of the Revenue Act of 1928 (26 USCA § 2166), which action the plaintiff alleges was illegal and without warrant of law. A claim for refund was duly filed and disallowed. Section 166 of the Revenue Act of 1928 is as follows: “See. 166, Revocable Trusts. Where the grantor of a trust has, at any time during the taxable year, either alone or in conjunction with any person not a beneficiary of the trust, the power to revest in himself title to any part of the corpus of the trust, then the income of such part of the trust for such taxable year shall be included in computing the net income of the grantor.” It is the contention of the plaintiff that, inasmuch as under the provisions of the amended trust agreement it was impossible for him to exercise any control over the income during the taxable year 1928, the income did not fall within the statute. He further contends that, if the statute be construed to include this income, it violates rights secured to him by the Fifth Amendment to the Constitution. The defendant, on the other hand, thinks the statute applies, since during the taxable year 1928, the plaintiff could have given a notice which would have operated to revoke or amend the trust in 1929, and that therefore, during the taxable year 1928, he, as grantor, had the power to revest in himself" }, { "docid": "11981358", "title": "", "text": "for the benefit of * * * persons with contingent interests, and income accumulated or held for future distribution under the terms of the will or trust.” The income with which we are concerned clearly is made taxable by this language. The question which concerns us, however, is not the taxability of the income but the identity of the taxpayer. This is determined not by Section 161(a) but by Section 161(b) which provides that the taxpayer shall be the fiduciary “except as provided in Section 166 (relating to revocable trusts) and Section 167 (relating to income for benefit of the grantor).” But Section 167 provides that it shall be the grantor and not the fiduciary who pays the tax on income held or accumulated for future distribution to the grantor. Thus the income here involved is ma.de taxable by Section 161(a) (1) but the tax is imposed upon the plaintiff as grantor by the provisions of Sections 161(b) and 167. In view of our conclusion that Section 167 is applicable we deem it unnecessary to pass upon the government’s further contention that the trust income is taxable to the plaintiff as his own income within the definition of Section 22(a) of the Revenue Acts of 1932 and 1934, 26 U.S.C.A. Int.Rev. Acts, pages 487, 669, because the plaintiff reserved to himself such complete control over the trust property and its income as to remain its owner for all practical purposes. The judgment of the district court is reversed. The one half, however, might not exceed the following maximum amounts for each year: One half the income of the trust fund for the year, but not exceeding the following maximum amounts:— In 1932 Nothing to be paid 1933 $10,000 1934 15,000 1935 20,000 1936 25,000 1937 30,000 1938 35,000 1939 40,000 1940 45,000 1941 50.000 3.912 55,000 3943 60,000 3944 65,000 19 ¡5 70,000 1946 and any year thereafter 75,000 Any excesa income over these amounts was to be held and accumulated for two years. If one half of the income of a calendar year should bo insufficient to meet the" }, { "docid": "6545677", "title": "", "text": "grantor brings the trusts squarely within the provisions of section 166 of the [Revenue Act of 1934, relating to revocable trusts. It may be true, as the majority opinion points out, that subsequent events might happen, such as the settlor’s death prior to January 15, 1936, which would completely divest her of the power to revoke these trusts. Such a condition subsequent had not, however, happened during the taxable years here in question. During the taxable years 1934 and 1935 the settlor of the trusts was living and, in my judgment, was completely vested with a power to revoke the trusts, although such power was not exercisable until after January 15,1936, and this, I think, brings the trusts within the provisions of section 166, even though such power could not be exercised until then. Such cases as Corning v. Commissioner, 104 Fed. (2d) 329, and John Edward Rovensky, 37 B. T. A. 702, in my1 judgment, are not in point and do not support the conclusions reached in the majority opinion. In those cases the power to revoke the trusts was not vested in the grantor of the trusts during the taxable year, but was to vest only upon the happening of some future contingency, which might never happen. That fact I think makes the Corning case and the Rovensky case easily distinguishable from the instant case. As I have already stated, I think the facts of the instant case bring it squarely within the provisions of section 166 of the [Revenue Act of 1934, and, unless that section is unconstitutional when applied to such a situation as we have here, it seems to me that we must give it effect and tax the income of such trusts to the grantor thereof. Considering the nature of the trusts and that the beneficiaries werei petitioner’s four children, and that petitioner retained the unqualified right to revoke the trusts and revest in. herself the corpus after the lapse of only a few years, I see nothing to indicate that section 166, when applied to such a situation, is unconstitutional. Cf. DuPont v." }, { "docid": "3898299", "title": "", "text": "instrument against a background of realities, we are convinced that this is a typical arrangement, falling within Section 166, where the grantor retains the controlling hand over something he has seemed to give away. In the view we take, it is unnecessary to consider alternative contentions of the Commissioner under Section 166 and Section 167 of the Revenue Act, 26 U.S.C. A.Int.Rev.Code §§ 166, 167. The decision of the Board of Tax Appeals is affirmed. Section 166 of the Revenue Act of 1932, 47 Stat. 221, 26 U.S.O.A.Int.Rev. Acts, provided as follows: “Revocable Trusts “Where at any time [during the taxable year] the power to revest in the grantor title to any part of the corpus of .the trust is vested— “(1) in the grantor, either alone or in conjunction with any person not having a substantial adverse interest in the disposition of such part of the corpus or the income therefrom, or “(2) in any person not having a substantial adverse interest in the disposition of such part of the corpus or the income therefrom, then the income of such part of the trust [for such taxable year] shall be included in computing the net income of the grantor.” The amendment of this section by the Revenue Act of 1934 merely struck out the portions indicated in brackets above but otherwise made no change. See the previous footnote. Report of the Senate Committee on Finance, Sen. Rep. No. 665, 72d Cong., 1st Sess., p. 34: “Under the present law the income of a trust is taxable to the grantor where, at any time during the taxable year, the grantor has power to revest in himself title to any part of the corpus of the trust, either alone or in conjunction with any person not a beneficiary of the trust. In an attempt to avoid this section, the practice has been adopted by some grantors of reserving power to revest title to the trust corpus in conjunction with a beneficiary having a very minor interest or of conferring the power to revest upon a person other than a beneficiary; in" }, { "docid": "13227844", "title": "", "text": "be included in computing the net income of the grantor,” is argued, by the petitioner, to mean a revesting of the corpus within the taxable year to make it taxable to tho set-tlor, and, by the respondent, it is argued that it requires merely the power of revocation. In Corliss v. Bowers, 281 U. S. 376, 50 S. Ct. 336, 74 L. Ed. 916, where it was held that the income was taxable to the settlor, the court pointed out that “The acquisition by the wife of the income became complete only when the plaintiff failed to exercise the power that he reserved. * * * Still speaking with reference to taxation, if a man disposes of a fund in such a way that another is allowed to enjoy the income which it is in the power of the first to appropriate, it does not matter whether the permission is given by assent or by failure to express dissent. The income that is subject to a man’s unfettered command and that he is free to enjoy at his own option, may be taxed to him as his income, whether ho sees fit to enjoy it or not.” This settlor could not revest and obtain the income within the taxable year 1928, for she had not served the necessary notice of one year and a day. If the trust could no£ be revoked during such year, then the income must he taxable to the recipient thereof. The power referred to in the statute must be one by which the grantor could revest in himself the title to the corpus during the taxable year. Lewis v. White (D. C.) 56 F.(2d) 390; appeal dismissed Oct. 21, 1932 (C. C. A. 1) 61 F.(2d) 1046. In Clapp v. Heiner, 51 F.(2d) 224 (C. C. A. 3), the trust’ contained a provision of revocation on six months’ notice. This gave, as Justice Holmes said, “the unfettered. command” over the principal of the trust within the year and was held taxable to the settlor. In the instant case, the principal of the trust so far" }, { "docid": "11979863", "title": "", "text": "power. Even though the right to exercise the power to revoke may be contingent, it says, nevertheless the existence of the power during the tax year is not contingent. • The distinction is difficult .to apprehend. It is not consonant with generally accepted concepts of powers, for a power which is not presently exercisable and may. never be capable, of being exercised does not exist. 1, Sugden on Powers, 3d Amer. Ed., 371, 372.' It is difficult, therefore, to. comprehend that one may be vested with a. power that is not presently nor with certainty exercisable in futuro. The immediate precursor of § 166 was the similarly numbered section of the actj of 1928. That section provided for the taxing of trust, income to the grantor “Where the grantor of a trust has, at.any time during the ■ taxable year * * * the power -to revest in himself title to any part of. the corpus of the.trust * * 26 U.S.C.A. § 166 note. This opened the door, if indeed it did not invite, the so-called “year-and-a-day” trusts, sustained in decisions such as Lewis v. White, D.C., 56 F.2d 390, and Langley v. Commissioner, 2 Cir., 61 F.2d 796. In the 1934 Act the words-“during the taxable year” were .eliminated. From this it is argued that the trust is revocafele if the power to revest may- be exercised by the grantor “at any time.” It does not follow from this, however, that the Congress in the 1934 Act used either the term “power” or the term “vested” in a sense other than these terms were used, in the 1928 or preceding .Revenue Acts, and the committee reports of the Congress do not so indicate. The term “power” as used in corresponding sections of earlier acts has not been thought to extend to. the reservation of a right conditioned upon a contingency that may never occur. Commissioner v. Stokes, 3 Cir., 79 F.2d 256; Higgins v. White, 1 Cir., 93 F.2d 357. The test by which it is-, to be determined whether a power to recapture trust corpus is reserved" }, { "docid": "7815272", "title": "", "text": "provisions of section 166 of the Internal Revenue Code of 1939. Respondent in the instant case does not argue that the words “at any time” as used in this section of the Code should be interpreted to mean that if a trust at the time of its inception was revocable, the income therefrom is taxable to the grantor throughout its existence irrespective of its subsequent amendment to make it irrevocable. It appears, however, that this is the underlying assumption inherent in respondent’s argument that the trusts here involved should be considered revocable trusts for a term of over 10 years. It may be that respondent does not precisely make this argument since in G.C.M. 18972, 1937-2 C.B. 231, he did not give such interpretation to the words “at any time” as contained in section 166 of the Revenue Act of 1934 which section is substantially the same as the provisions contained in section 166 of. the Internal Revenue Code of 1939 and in section 676(a) of the Internal Revenue Code of 1954. Section 166 of the Revenue Act of 1932 and comparable sections of prior revenue acts provided that where a grantor had “at any time during the taxable year” the power to revest in himself title to any part of the corpus of a trust, the income-from such part of the corpus should be included in tbe grantor’s income. In ruling as to tbe taxability of income from a trust created in 1933 and amended in April 1934 to delete a provision reserving to tbe grantor tbe right to revoke tbe trust upon a year and a day’s notice, respondent in G.C.M. 18972, supra, stated: Attention will first be given to tbe question whether any part of the income of the trusts is taxable to the grantor because of the provision originally contained in paragraph 3 of the trust instruments (deleted by the amendment of April _, 1934) giving the grantor the power to revoke the trusts upon a year and a day’s notice. Since the trusts were not revocable “during the taxable year” 1933, the trust income for" }, { "docid": "7815271", "title": "", "text": "time that proceeding was instituted even though at that time notices of deficiency had not been issued. In this limited sense the judgment of the California court, argued in the instant case to be binding upon this Court, was collusive just as was the judgment discussed in Erik Krag, supra. Cf. Newman v. Commissioner, supra. The trusts in the instant case were revocable trusts until their amendment on July 30, 1954, and under our holding in George 8. Gaylord, supra, the income therefrom for the period prior to their amendment would be taxable to the grantor. The only years before the Court in the Gaylord case were the years prior to the year in which the trusts there involved were amended to provide expressly that they were irrevocable, whereas in the instant case the earliest year before us is the year during which the trusts were amended. The Gaylord case does not pass on the question whether the trusts as amended remained trusts of which the grantor was to be treated as owner under the provisions of section 166 of the Internal Revenue Code of 1939. Respondent in the instant case does not argue that the words “at any time” as used in this section of the Code should be interpreted to mean that if a trust at the time of its inception was revocable, the income therefrom is taxable to the grantor throughout its existence irrespective of its subsequent amendment to make it irrevocable. It appears, however, that this is the underlying assumption inherent in respondent’s argument that the trusts here involved should be considered revocable trusts for a term of over 10 years. It may be that respondent does not precisely make this argument since in G.C.M. 18972, 1937-2 C.B. 231, he did not give such interpretation to the words “at any time” as contained in section 166 of the Revenue Act of 1934 which section is substantially the same as the provisions contained in section 166 of. the Internal Revenue Code of 1939 and in section 676(a) of the Internal Revenue Code of 1954. Section 166 of" }, { "docid": "1516667", "title": "", "text": "of being exercised during the taxable year, it is helpful as indicating the grounds upon which such tax provisions are held to be a proper exercise of the taxing power of Congress. It also throws some light upon the question of a proper construction of section 166. The history of the legislation while the 1924 Revenue Act was before Congress is also instructive. Section 219 (g), as it originally came from the House in the Revenue Bill of 1924, read as follows: “Where the grantor of a trust reserves a power of revocation which if exercised would revest in him title to the corpus of the trust then the income of such trust shall be included in computing the net income of the grantor.” While the bill was before the Senate, the words, “at any time during the taxable year, either alone or in conjunction with any person not a beneficiary of the trust,” were introduced, and section 219 (g), as thus amended, was finally enacted and re-enacted in the Revenue Act 1928 as section 166. The Senate Finance Committee, referring to the section, reported as follows: “This section provides that when the grantor of a truest reserves the right to change the trust in favor of himself, the income is taxed to the grantor. The subdivision of the House Bill has been rewritten in order that there shall not be taxed to the grantor the income of a trust as to which the grantor has a power of revocation subject however to a condition which has not happened.” Italics supplied.) These proceedings indicate that the words “at any time during the taxable year” were inserted for a definite purpose. They limited the application of the statute to those cases where the grantor had reserved in the trust agreement an unconditional power by the exercise of which during any taxable year he could control or appropriate the income derived from the trust during that year and which was payable to am other. According to the section, as originally proposed, the mere reservation of the power of revocation was sufficient to" }, { "docid": "9829913", "title": "", "text": "is to be exercised at the time specified in the indentures, namely within the preceding calendar year (except for the last five days thereof); and that therefore the trusts are within the literal provisions of Section 166 of the Revenue Act of 1934. It is also clearly apparent that the income from the trusts for any years subsequent to 1934 would be taxable to the taxpayer, for if she has failed to take the necessary steps in 1934 to revoke the trusts for the year 1935 she must be deemed to have elected not to avail herself of the income. The taxpayer points out, however, that Section 166 of the Revenue Act of 1928, 45 Stat. 840, and Section 166 of the Revenue Act of 1932, 47 Stat. 221, 26 U.S.C.A. Int.Rev.Acts, pages 543, 727, in effect when the trusts respectively were created and continuing until the 1934 Act came into effect, contain the phrase “during the taxable year” placed directly after the phrase “at any time” and that the phrase first referred to was omitted from Section 166 of the Revenue Act of 1934. The taxpayer points out that she has not had the opportunity, with knowledge that the income from the trusts for the year 1934 would be taxable to her, to avail herself of the income from the trusts since to do this she would have had to have exercised her power of revocation prior to December 26, 1933. She contends that since the Revenue Act of 1934 became effective on May 10, 1934, the Commissioner in taxing the income from the trusts to her gives retroactive effect to the provisions of Section 166, depriving her of property without due process of law in violation of the Fifth Amendment. We are of the opinion, however, that the decision of the Supreme Court in Reinecke v. Smith, 289 U.S. 172, 175, 53 S.Ct. 570, 77 L.Ed. 1109, disposes of this contention for reasons which we will now state. In the Reinecke case as in the case at bar, the taxpayer contended that the exaction was not based upon" }, { "docid": "6433384", "title": "", "text": "to revoke and the right to exercise that power. Even though the right to exercise the power to revoke may be contingent, it says, nevertheless the existence of the power during the tax year is not contingent. The distinction is difficult to apprehend. It is not consonant with generally accepted concepts of powers, for a power which is not presently exercisable and may never be capable of being exercised does not exist. 1, Sugden on Powers, 3d Amer. Ed. 371, 372. It is difficult, therefore, to comprehend that one may be vested with a power that is not presently nor with certainty exercisable In futuro. [The 1928 Act] The immediate precursor of § 166 was the similarly numbered section of the act of 1928. That section provided for the taxing of trust income, to the grantor “where the grantor of a trust has at any time during the taxable year . . . the power to revest in himself title to any part of the corpus of the trust . . This opened the door, if indeed it did not invite, the so-called “year-and-a-day” trusts, sustained in decisions such as Lewis v. White, 56 Fed. (2d) 390 (D. C. Mass.), and Langley v. Commissioner, 61 Fed. (2d) 796 (C. C. A. 2). In the 1934 Act the words “during the taxable year” were eliminated. From this it is argued that the trust is revocable if the power to revest may be exercised by the grantor “at any time”. It does not follow from this, however, that the Congress in the 1934 Act used either the term “power” or the term “vested” in a sense other than these terms were used in the 1928 or preceding Revenue Acts, and the committee reports of the Congress do not so indicate. The term “power” as used in corresponding sections of earlier acts has not been thought to extend to the reservation of a right conditioned upon a contingency that may never occur. Commissioner v. Stokes, 79 Fed. (2d) 256 (C. C. A. 3) [35-2 USTC ¶ 9528]; Higgins v. White, 93 Fed. (2d)" }, { "docid": "6433380", "title": "", "text": "OPINION. Leech : The five trusts in this proceeding were before us in Henry A. B. Dunning, 36 B. T. A. 1222, upon a deficiency proposed for the year 1933 under the Revenue Act of 1932. We there held that none of the trust income was taxable to petitioner under section 166 of the 1932 Act, but that such portion of that income as was used to pay premiums on petitioner’s life insurance was taxable to him under section 167 (a) (3) of the 1932 Act. Petitioner concedes that the latter point is res adjudicaba as to this proceeding, and that he is properly taxable with respect to such portion of the 1934 income as was used to pay premiums on policies of insurance on his life. Respondent argues that our decision in 36 B. T. A. 1222, supra, was made under the Revenue Act of 1932 and that the change in section 166 by the Revenue Act of 1934 renders all the income of these trusts taxable to the petitioner under that section as thus amended. That change consisted in striking out the words “during the taxable year.” He advances no other ground for taxing the income of these trusts to petitioner. The income which the respondent seeks to tax as that of the taxpayer is that of trusts which must be assumed here to be juristic entities, for tax purposes, which the taxpayer did not and could not receive at any time. The controlling enactment reads: SEC. 166. REVOCABLE TRUSTS. Where at any time the power to revest in the grantor title to any part of the corpus of the trust is vested— (1) in the grantor * * *. The trust instruments may be susceptible of two constructions. The first is that the grantor thus created irrevocable trusts for terms of five years each. The second alternative is that the grantor taxpayer in the quoted trust deeds created trusts for terms longer than five years each. Upon either such premise of fact, the respondent is, we think, foreclosed by decisions of the courts and the Board. If" }, { "docid": "5186926", "title": "", "text": "OPINION. MuRdogh : I. Income from the trust of March 19,1931. — The Commissioner, in determining the deficiencies, included the income of this trust in the income of the petitioner on the ground that the trust was a revocable trust within the provisions of section 166 of the Eevenue Acts of 1928, 1932, and 1934. He has now abandoned this contention, except as to the year 1934, and he no longer argues that section 166 of the Eevenue Acts of 1928 and 1932 has any application. That section applies only where the grantor, or the grantor and certain others, had a power “during the taxable year” to revest title to a part of the corpus in the grantor. Since the deed of trust gave no such power, the Commissioner was obviously in error in applying section 166 of the Eevenue Acts of 1928 and 1932. The words “during the taxable year” were dropped from section 166 when it was incorporated in the Eevenue Act of 1934 and the Commissioner still contends that the income of the trust for 1934 is taxable to the petitioner under the provision of that section to the effect that where at any time the power to revest in the grantor title to any part of the corpus is vested in the grantor, then the income of such portion shall be included in his income. He relies upon the provisions of the deed of trust giving the petitioner certain elections as each child became 21. Those provisions are quoted in extenso in the findings. The grantor, if alive, could then elect (a) to terminate the trust and give the principal and any accumulated income to his wife, if living, or, if she was dead, “to distribute the same in such manner as the Grantor may direct”; (b) to continue the trust and let the corpus be disposed of by the child at death; and (c) “such other final distribution or provision as the Grantor may at that time, namely, as each child or stepchild attains the age of twenty-one years, direct.” The second choice, of course," }, { "docid": "6545676", "title": "", "text": "OF GRANTOR. (a) Where any part of the income of a trust— (1) is, or in the discretion of the grantor or of any person not having a substantial adverse interest in the disposition of such part of the income may be, held or accumulated for future distribution to the grantor ; or (2) may, in the discretion of the grantor or of any person not having a substantial adverse interest in the disposition of such part of the income, be distributed to the grantor; or (3) * * * then such part of the income of the trust shall be included in computing the net income of the grantor. Black, dissenting: I respectfully dissent from the conclusion reached in the majority opinion. Petitioner, the settlor of the trusts, reserved to herself in each of the trust indentures, “the right to modify, alter, or entirely revoke this instrument at any time after January 15,1936, as to all or any part of the trust herein created, etc.” It seems to me this reserved power in the grantor brings the trusts squarely within the provisions of section 166 of the [Revenue Act of 1934, relating to revocable trusts. It may be true, as the majority opinion points out, that subsequent events might happen, such as the settlor’s death prior to January 15, 1936, which would completely divest her of the power to revoke these trusts. Such a condition subsequent had not, however, happened during the taxable years here in question. During the taxable years 1934 and 1935 the settlor of the trusts was living and, in my judgment, was completely vested with a power to revoke the trusts, although such power was not exercisable until after January 15,1936, and this, I think, brings the trusts within the provisions of section 166, even though such power could not be exercised until then. Such cases as Corning v. Commissioner, 104 Fed. (2d) 329, and John Edward Rovensky, 37 B. T. A. 702, in my1 judgment, are not in point and do not support the conclusions reached in the majority opinion. In those cases the" }, { "docid": "3898291", "title": "", "text": "the powers of, and the succession among the trustees, the power to remove trustees, the power to appoint successor trustees, the power to appoint additional trustees, and the power to alter the number of, the power of and the succession among the Committee, and to appoint additional members of the Committee and successor members of the Committee.” At this time revocable trusts were governed by Section 166 of the Revenue Act of 1928, 45 Stat. 840, 26 U.S.C.A.Int.Rev. Acts, which provided that the income was taxable to the grantor where the grantor had “at any time during the taxable year, either alone or in conjunction with any person not a beneficiary of the trust, the power to revest in himself” title to the corpus of the trust. Here the grantor reserved to himself no formal power of revocation either alone or in conjunction with the members of the committee. Section 166 was amended in the Revenue Act of 1932 in order to block a possible means of tax avoidance by the device of vesting the power to revoke the trust in some person other than a beneficiary, whereby in fact the grantor may retain “substantially the same control as if he alone- had power to revoke the trust”. We set forth in the footnote a portion of the Committee report indicating the general purpose of the 1932 amendment. It is specifically conceded in the brief of the petitioner that the committee, in whom the power to revoke the trust was originally vested, did not have “a substantial adverse interest” in the disposition of the corpus or income therefrom, and we shall consider the case on the basis of that concession. Cf. Corning v. Commissioner, 6 Cir., 104 F.2d 329, 333. Consequently, if the provisions of the trust instrument had remained unaltered, the income from the entire corpus would have been taxable to the grantor under paragraph 2 of Section 166 of the Revenue Acts of 1932 and 1934. However, shortly after the enactment of the 1932 amendment the designated committee executed an instrument amending Clause Fifth of the trust indenture" } ]

[ { "docid": "22204126", "title": "", "text": "476. Consequently, it implements an overriding federal policy which is clearly adequate to defeat state jurisdiction over litigation involving reservation Indians. Accordingly, even if we assume that the Montana courts properly exercised adoption jurisdiction prior to the organization of the Tribe, a question we do not decide, that jurisdiction has now been pre-empted. Finally, we reject the argument that denying the Runs-aboves access to the Montana courts constitutes impermissible racial discrimination. The exclusive jurisdiction of the Tribal Court does not derive from the race of the plaintiff but rather from the quasi-sovereign status of the Northern Cheyenne Tribe under federal law. Moreover, even if a jurisdictional holding occasionally results in denying an Indian plaintiff a forum to which a non- Indian has access, such disparate treatment of the Indian is justified because it is intended to benefit the class of which he is a member by furthering the congressional policy of Indian self-government. Morton v. Mancari, 417 U. S. 535, 551-555 (1974). The motion of the Northern Cheyenne Tribe for leave to file a brief, as amicus curiae, is granted. The petition for certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment of the Supreme Court of Montana is reversed. It is so ordered. See State ex rel. Firecrow v. District Court, — Mont. —, —, 536 P. 2d 190, 192 (1975). In re Firecrow (Northern Cheyenne Tribal Ct., filed Aug. 1, 1973). Defendant’s Exhibit C. In re Firecrow (Northern Cheyenne Tribal Ct., filed Aug. 30, 1974). Defendant’s Exhibit A. They alleged that petitioner had voluntarily abandoned the child to Josephine Runsabove on June 2, 1969, and had not supported the child for over a year. The natural father consented to the adoption and waived further notice. Chapter 3, § 2, of the Revised Law and Order Ordinances of the Northern Cheyenne Tribe of the Northern Cheyenne Reservation, approved by the Commissioner of Indian Affairs, June 9, 1966. The ordinance provides: “The Tribal Court of the Northern Cheyenne Reservation shall have jurisdiction to hear, pass upon, and approve applications for adoptions among members of" } ]

[ { "docid": "6088825", "title": "", "text": "convictions or even charges pending in tribal court. Upward departures are sometimes ordered based on tribal court histories. Such convictions are certainly matters to be considered by the sentencing judge. See U.S.S.G. § 1B1.4 under which the judge “may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law.” See 18 U.S.C. § 3661. [¶ 11] Archambault argues that Congress did nothing other than legislatively delegate to the tribe the authority to prosecute him as a nonmember Indian. A very troubling aspect to this argument is that it can be contended that Congress could not constitutionally so delegate without extending all constitutional protections. This full panoply of protections, as discussed above, is not found in tribal courts or by virtue of the Indian Civil Rights Act. What is the possible basis for the contention that Congress could not delegate any such thing? “Our cases suggest constitutional limitations even on the ability of Congress to subject American citizens to criminal proceedings before a tribunal that does not provide constitutional protections as a matter of right. Cf. Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) ... We decline to produce such a result through recognition of inherent tribal authority.” Duro, 495 U.S. beginning at 693, 110 S.Ct. 2053. Examining such language, Indian tribal members are of course “American citizens” being brought before a tribunal, albeit of their own tribe, that does not provide constitutional protections as a matter of right. Given the fact that Congress had not then acted to even arguably delegate any authority to prosecute nonmember Indians, I interpret the quoted language as nothing more than dicta. I certainly decline any thought of judicially amending the Indian Civil Rights Act to conform to the Bill of Rights. [¶ 12] Archambault has attempted to establish that the tribal court was, in effect, a creature or arm of the United States government (and thus without sovereignty as to criminal prosecutions) because of the annual multi-million dollar federal appropriations made to the tribe for police, courts, and prosecutors. The" }, { "docid": "8522726", "title": "", "text": "2. They claim that he was merely a temporary Chief of the Snipe clan, and, though the self-proclaimed “Chairman” of the Council for several years, has no entitlement to that position. It appears that Chief Roy Poodry is also a Chief of the Snipe clan, see supra note 3; there is no clarification of this matter in the record. . This power has been significantly limited by statute. Congress has conferred on federal courts criminal jurisdiction over major offenses committed by or against an Indian within Indian territory. See 18 U.S.C. § 1153(a) (establishing as federal crimes fourteen major crimes committed by an Indian on an Indian reservation); id. § 3242 (providing that Indian charged with offense punishable under § 1153 \"shall be tried in the same courts and in the same manner as are all other persons committing such offense within the exclusive jurisdiction of the United States\"); id. § 1152 (conferring on federal courts criminal jurisdiction over offenses committed within \"Indian country,” except by one Indian against another). A crime committed by a non-Indian against a non-Indian within Indian territory is subject to state jurisdiction. See United States v. McBratney, 104 U.S. 621, 624, 26 L.Ed. 869 (1882); cf. Donnelly v. United States, 228 U.S. 243, 271-72, 33 S.Ct. 449, 458-59, 57 L.Ed. 820 (1913). Tribal criminal jurisdiction includes jurisdiction over non-member Indians. See Pub.L. No. 101-511, § 8077(b), (c), 104 Stat. 1856, 1892-93 (1990) (overturning result of Duro v. Reina, 495 U.S. 676, 695-96, 110 S.Ct. 2053, 2064-65, 109 L.Ed.2d 693 (1990)). . Members of federally recognized Indian tribes are citizens of the United States and are therefore afforded constitutional protection against violations of individual rights by federal and state institutions, but constitutional provisions limiting federal or state authority are of no force in constraining actions of tribal governments. See 8 U.S.C. § 1401(b) (providing that a person bom in the United States to a member of an Indian tribe shall be a national and citizen of the United States at birth). . The congressional power to legislate on tribal affairs, often referred to as \"plenary,” is" }, { "docid": "22210265", "title": "", "text": "688, 110 S.Ct. 2053, 2061, 109 L.Ed.2d 693 (1990) (holding that Indian tribes lack tribal jurisdiction over crimes committed by non-member Indians within the tribe’s reservation). Furthermore, the Supreme Court has long held that states possess criminal jurisdiction over crimes committed on Indian reservations by non-Indians against non-Indians. See United States v. McBratney, 104 U.S. 621, 624, 26 L.Ed. 869 (1881) (holding that Colorado by its admission into the United States acquired criminal jurisdiction over its own citizens and other white persons through the whole territory within its limits, including any Indian reservations); New York ex rel. Ray v. Martin, 326 U.S. 496, 499, 66 S.Ct. 307, 308-09, 90 L.Ed. 261 (1946); United States v. Antelope, 430 U.S. 641, 643 n. 2, 97 S.Ct. 1395, 1397 n. 2, 51 L.Ed.2d 701 (1977); Duro, 495 U.S. at 680-81 n. 1, 110 S.Ct. at 2057 n. 1. See also United States v. Baker, 894 F.2d 1144, 1146 (10th Cir.1990) (discussing McBratney exception to exclusive federal and tribal jurisdiction over Indian reservations); State v. Snyder, 119 Idaho 376, 807 P.2d 55, 56-58 (1991) (holding that state has jurisdiction to prosecute a non-Indian for operating a motor vehicle under the influence of alcohol within the boundary of an Indian reservation); State v. Jones, 92 Nev. 116, 546 P.2d 235, 235 (1976) (upholding arrest on Indian reservation of non-Indian found to be in possession of marijuana); State v. Herber, 123 Ariz. 214, 598 P.2d 1033, 1034-35 (Ct.App.1979) (same). Because Stephan would have criminal jurisdiction to execute search warrants against a non-Indian under the McBratney exception, and because we do not believe that treating Kaul as a non-Indian would infringe on the Prairie Band Potawatomi Indian Tribe’s sovereignty because Kaul is not a member of that tribe, Stephan also had jurisdiction to execute the warrants based on Kaul’s nonmember status. Conclusion For the reasons stated above, we believe that Stephan had both probable cause and jurisdiction to execute the search warrants at Kaul’s store, and therefore did not intrude on Kaul’s Fourth Amendment protections against unreasonable searches and seizures. Accordingly, we AFFIRM the decision of the" }, { "docid": "20008366", "title": "", "text": "449 U.S. 166, 174-76, 101 S.Ct. 453, 459-60, 66 L.Ed.2d 368 (1980); Williamson v. Lee Optical, 348 U.S. 483, 491, 75 S.Ct. 461, 466, 99 L.Ed. 563 (1955). For legislation regulating commerce with Indian tribes, as “long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians, such legislative judgments will not be disturbed.” Mancari, 417 U.S. at 555, 94 S.Ct. at 2485; Delaware Tribal Business Comm. v. Weeks, 430 U.S. 73, 85, 97 S.Ct. 911, 919, 51 L.Ed.2d 173 (1977); Moe, 425 U.S. at 480, 96 S.Ct. at 1644-45. In Narragansett Indian Tribe v. National Indian Gaming Commission, 158 F.3d 1335 (D.C.Cir.1998), we summed up the state of the law this way: “ordinary rational basis scrutiny applies to Indian classifications just as it does to other non-suspect classifications under equal protection analysis.” Id. at 1340. On the other hand, “all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.” Adarand, 515 U.S. at 227, 115 S.Ct. at 2113. These two lines of authority may be reconciled, plaintiffs argue, on the basis that the preference in Mancari was limited to members of federally recognized Indian tribes, while the preference in Adarand was not so limited, and thus constituted - in the Court’s words in Mancari - a preference “granted to Indians ... as a discrete racial group,” 417 U.S. at 554, 94 S.Ct. at 2484; see United States Air Tour Ass’n v. FAA, 298 F.3d 997, 1012 n. 8 (D.C.Cir.2002); Narragansett Indian Tribe, 158 F.3d at 1340-41. That distinction aside, the Supreme Court has made it clear enough that legislation for the benefit of recognized Indian tribes is not to be examined in terms applicable to suspect racial classifications. Not only in Mancari, but also in Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 500-01, 99 S.Ct. 740, 761-62, 58 L.Ed.2d 740 (1979), the Court held" }, { "docid": "19337515", "title": "", "text": "a state may implement a tribal classification that will be evaluated under Mancari. The classification upheld in Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463, 473-74, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979), permitted, but did not require, certain states to assume civil and criminal jurisdiction over Indian land. . Even if the court were to address the merits of the plaintiffs' arguments about the assessment provisions, there is no reason to believe that a different outcome would be forthcoming than the one reached in In re Indian Gaming Related Cases, 147 F.Supp.2d 1011 (N.D.Cal.2001), where the district court held that the compacts’ assessment provisions did not violate IGRA. . For this reason also, there is no equal protection violation under count IV which seeks to enjoin enforcement of California's Penal Code prohibitions against class III gaming by the plaintiffs. Following authority specifically delegated to it by Congress, California exempted Indian tribes from otherwise generally applicable laws prohibiting class III gaming. This benefit to Indian tribes is evaluated under Mancari and is consistent with the Equal Protection Clause. . Plaintiffs also contend that the compacts constitute racial preferences because tribal membership depends, at least in part, on race. (Pis.' Reply at 22 n.14). Even if true, strict scrutiny does not apply under the case law. Mancari illustrates this point, as the BIA hiring preference only applied to persons who were \"one-fourth or more degree Indian blood and ... a member of a Federally-recognized tribe.\" Mancari, 417 U.S. at 554 n. 24, 94 S.Ct. 2474; see also Alaska Chapter, 694 F.2d at 1168 (\"If the preference in fact furthers Congress' special obligation, then a for-tiori it is a political rather than racial classification, even though racial criteria might be used in defining who is an eligible Indian.”)." }, { "docid": "8081035", "title": "", "text": "U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990). Albert Duro, an enrolled member of the Torres-Martinez Band of Cahuilla Mission Indian Tribe, allegedly shot and killed a member of the Gila River Indian Tribe on a Salt River Pima-Maricopa Indian Reservation. Duro, 495 U.S. at 679-81, 110 S.Ct. 2053. Following the shooting, Duro was placed in the custody of Pima-Marico-pa officers and was charged with the illegal firing of a weapon in Pima-Maricopa Indian Community Court. Id. at 681, 110 S.Ct. 2053. Duro filed a motion to dismiss the prosecution for lack of jurisdiction, which was denied by the tribal court. Id. Duro then challenged the jurisdiction of the Prima-Maricopa Community Court by filing a petition for writ of habeas corpus in United States District Court. Id. at 681-82, 110 S.Ct. 2053. The district court granted the writ, but a divided panel of the Ninth Circuit reversed. Id. The Supreme Court granted certiorari and ultimately held that “the sovereignty retained by the tribes in their dependent status within our scheme of government [does not include] the power of criminal jurisdiction over [non-member Indians].” Id. at 679, 684, 110 S.Ct. 2053. In so holding, the Court noted that the Indian tribes are “limited sovereigns [that are] necessarily subject to the overriding authority of the United States.” Id, at 685, 110 S.Ct. 2053. Although the Court recognized that the tribes never explicitly surrendered their criminal jurisdiction over non-member Indians, the Court found that the exercise of such jurisdiction, in the absence of congressional authorization, would be inconsistent with the dependent status of the tribes. Id. at 686-96, 110 S.Ct. 2053. Thus, the Court in Duro held that the Pima-Maricopa Indian Community Court lacked criminal jurisdiction over Duro, a non-member Indian. Id, at 698, 110 S.Ct. 2053. II. The 1990 Indian Civil Rights Act Amendments and the Impact of the Amendments in Light of Duro Congress reacted to the Du.ro decision by passing the 1990 amendments to the Indian Civil Rights Act (“ICRA”) (hereinafter referred to as the “1990 amendments” or the “1990 ICRA amendments”). The ICRA originally defined the Indian tribes’" }, { "docid": "8522727", "title": "", "text": "non-Indian against a non-Indian within Indian territory is subject to state jurisdiction. See United States v. McBratney, 104 U.S. 621, 624, 26 L.Ed. 869 (1882); cf. Donnelly v. United States, 228 U.S. 243, 271-72, 33 S.Ct. 449, 458-59, 57 L.Ed. 820 (1913). Tribal criminal jurisdiction includes jurisdiction over non-member Indians. See Pub.L. No. 101-511, § 8077(b), (c), 104 Stat. 1856, 1892-93 (1990) (overturning result of Duro v. Reina, 495 U.S. 676, 695-96, 110 S.Ct. 2053, 2064-65, 109 L.Ed.2d 693 (1990)). . Members of federally recognized Indian tribes are citizens of the United States and are therefore afforded constitutional protection against violations of individual rights by federal and state institutions, but constitutional provisions limiting federal or state authority are of no force in constraining actions of tribal governments. See 8 U.S.C. § 1401(b) (providing that a person bom in the United States to a member of an Indian tribe shall be a national and citizen of the United States at birth). . The congressional power to legislate on tribal affairs, often referred to as \"plenary,” is not absolute. See generally Shoshone Tribe v. United States, 299 U.S. 476, 497, 57 S.Ct. 244, 251-52, 81 L.Ed. 360 (1937); Chippewa Indians of Minnesota v. United States, 301 U.S. 358, 375-76, 57 S.Ct. 826, 833-34, 81 L.Ed. 1156 (1937). Legislation must be tied rationally to Congress's “trust” obligations with respect to the welfare of Indian nations. See Morton v. Mancari, 417 U.S. 535, 555, 94 S.Ct. 2474, 2485, 41 L.Ed.2d 290 (1974); see also United States v. Sioux Nation, 448 U.S. 371, 415-16, 100 S.Ct. 2716, 2740-41, 65 L.Ed.2d 844 (1980); Delaware Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 85, 97 S.Ct. 911, 919, 51 L.Ed.2d 173 (1977). The respondents do not challenge Congress's power to enact the ICRA, the statute at issue in this case. . We refer here, as elsewhere, to the Title designations in S. 1843, an Indian civil rights measure passed by the Senate on December 7, 1967. 113 Cong. Rec. 35,473 (1967). S. 1843 was identical to Amendment No. 430 to H.R. 2516, the broader civil rights measure" }, { "docid": "7378294", "title": "", "text": "The court’s oral decision encompassed only the plaintiffs request for a declaratory judgment on the regulatory jurisdiction issue. The Yakima Nation's Section 1983 claim and pendent state claim were expressly excluded from the oral decision but are addressed in this written opinion. . Wilkinson is a non-Indian and is not a member of the Yakima Nation. . WASH.REV.CODE § 37.12.010 provides: Assumption of criminal and civil jurisdiction by state. The State of Washington hereby obligates and binds itself to assume criminal and civil jurisdiction over Indians and Indian territory, reservations, country, and lands within this state in accordance with the consent of the United States given by the act of August 15, 1953 (Public Law 280, 83rd Congress, 1st Session), but such assumption of jurisdiction shall not apply to Indians when on their tribal lands or allotted lands within an established Indian reservation and held in trust by the United States or subject to a restriction against alienation imposed by the United States, unless the provisions of R.C.W. 37.12.021 [tribal consent] have been invoked, except for the following: (1) Compulsory school attendance; (2) Public assistance; (3) Domestic relations; (4) Mental illness; (5) Juvenile delinquency; (6) Adoption proceedings; (7) Dependent children; and (8) Operation of motor vehicles upon the public streets, alleys, roads and highways. Provided further, that Indian tribes that petitioned for, were granted and became subject to state jurisdiction pursuant to this chapter on or before March 13, 1963 shall remain subject to state civil and criminal jurisdiction as if chapter 36, Laws of 1963 had not been enacted. This partial assumption of jurisdiction over Indians (based on the status of the land on which the questioned activity occurred) has been sanctioned by the Supreme Court. Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979). . Even if P.L. 280 were interpreted as an affirmation or expansion of the state’s jurisdiction over non-Indians, it is limited to “civil litigation\" and not \"general state civil regulatory control” such as zoning. See Bryan v. Itasca County, 426 U.S. 373," }, { "docid": "7323781", "title": "", "text": "Indians when on their tribal lands or allotted lands within an established Indian reservation and held in trust by the United States or subject to a restriction against alienation imposed by the United States, unless the provisions of R.C.W. 37.12.021 [tribal consent] have been invoked, except for the following: (1) Compulsory school attendance; (2) Public assistance; (3) Domestic relations; (4) Mental illness; (5) Juvenile delinquency; (6) Adoption proceedings; (7) Dependent children; and (8) Operation of motor vehicles upon the public streets, alleys, roads and highways. Provided further, that Indian tribes that petitioned for, were granted and became subject to state jurisdiction pursuant to this chapter on or before March 13, 1963 shall remain subject to state civil and criminal jurisdiction as if chapter 36, Laws of 1963 had not been enacted. This partial assumption of jurisdiction over Indians (based on the status of the land on which the questioned activity occurred) has been sanctioned by the Supreme Court. Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979). . Even if P.L. 280 were interpreted as an affirmation or expansion of the state's jurisdiction over non-Indians, it is limited to \"civil litigation\" and not \"general state civil regulatory control” such as zoning. See Bryan v. Itasca County, 426 U.S. 373, 384-85, 96 S.Ct. 2102, 2108-09, 48 L.Ed.2d 710 (1976); Barona Group of Capitan Grande Band v. Duffy, 694 F.2d 1185, 1188 (9th Cir.1982) (P.L. 280, does not enable California to impose its regulatory bingo laws on the reservation); United States v. County of Humboldt, 615 F.2d 1260 (9th Cir.1980) (California municipality may not zone restricted lands); Santa Rosa Band of Indians v. Kings County, 532 F.2d 655 (9th Cir.1976) (California county may not zone restricted lands). . Both cited cases upheld the Quinault Indian Nation’s application of its zoning laws to non-indian owned deeded lands. The State of Washington exercises the same degree of P.L. 280 jurisdiction over the Quinault Indian Reservation as it does over the Yakima Reservation. See, Comenout v. Burdman, 84 Wash.2d 192, 525 P.2d 217" }, { "docid": "21010988", "title": "", "text": "protection clause and the incorporated establishment clause, which amount to the same challenges levied at the federal NAC exemption. The similarity of language, date of passage, and legislative history of Texas’ NAC exemption all indicate that the Texas legislature enacted the exemption to parallel the federal NAC exemption. The district court upheld Texas’ NAC exemption under the Constitution’s supremacy clause, implicitly reasoning that the federal NAC exemption preempts Texas’ peyote prohibition statute. Peyote Way Church of God, Inc. v. Meese, 698 F.Supp. at 1349. The district court’s reasoning cannot stand after the Supreme Court upheld Oregon’s statute prohibiting peyote posses sion by NAC members. Smith, 110 S.Ct. at 1606. But Smith h implied holding that states need not conform with the federal NAC exemption does not bear on whether states may choose to so conform. We recognize an issue in this case that has not yet been directly addressed by American courts, namely whether states may enact laws beneficial to tribal Native Americans in exercise of the federal government's trust power pursuant to implied Congressional authorization. Peyote Way argues that because the Constitution and the seminal Native American law cases only recognize a guardian-ward relationship between the federal government and tribal Native Americans, we must subject Texas' NAC exemption to strict scrutiny under the equal protection and establishment clauses. Indeed, the Supreme Court holds that \"[s]tates do not enjoy this same unique [trustj relationship with Indians.\" Washington v. Confederated Bands and Tribes of Yakima Indian Nation, 439 U.S. 463, 501, 99 S.Ct. 740, 761, 58 L.Ed.2d 740 (1979). Yet the Court upheld Washington's statutory assumption of partial civil and criminal jurisdiction over Yakima lands against an equal protection challenge because Washington's statute \"was enacted in response to a federal measure explicitly designed to readjust the allocation of jurisdiction over the Indians.\" Id. Yakima teaches that states may exercise the federal trust power pursuant to express Congressional authorization. Although Congress has not expressly authorized states to adopt the federal NAC exemption, we think that it would be preposterous to attribute any other intent to Congress. When the federal government entered the" }, { "docid": "21010989", "title": "", "text": "authorization. Peyote Way argues that because the Constitution and the seminal Native American law cases only recognize a guardian-ward relationship between the federal government and tribal Native Americans, we must subject Texas' NAC exemption to strict scrutiny under the equal protection and establishment clauses. Indeed, the Supreme Court holds that \"[s]tates do not enjoy this same unique [trustj relationship with Indians.\" Washington v. Confederated Bands and Tribes of Yakima Indian Nation, 439 U.S. 463, 501, 99 S.Ct. 740, 761, 58 L.Ed.2d 740 (1979). Yet the Court upheld Washington's statutory assumption of partial civil and criminal jurisdiction over Yakima lands against an equal protection challenge because Washington's statute \"was enacted in response to a federal measure explicitly designed to readjust the allocation of jurisdiction over the Indians.\" Id. Yakima teaches that states may exercise the federal trust power pursuant to express Congressional authorization. Although Congress has not expressly authorized states to adopt the federal NAC exemption, we think that it would be preposterous to attribute any other intent to Congress. When the federal government entered the arena of drug control, it purposely left intact the states' enforcement structures. See 21 U.S.C. § 903 (states may regulate drugs concurrently with Congress unless there is a \"positive conflict\" between federal and state law). If the states are to enforce their own laws controlling peyote possession, they may, per Smith, refuse all exemptions, exempt only NAC members, or exempt all bona fide religious peyote use. If Congress wanted states to prohibit NAC peyote use, there would be no reason for its members to tolerate the continued existence of the 25-year-old federal exemption. Just before the federal NAC exemption was first promulgated, Congress rejected the alternative now proposed by Peyote Way-that all bona fide religious peyote use be allowed. Thus, we conclude that Congress would want states to exercise its trust power in exempting NAC members from their laws prohibiting peyote possession. We are not alone in finding under the circumstances an implied congressional will that, pursuant to federal regulation, states exercise the federal trust power for the benefit of tribal Native Americans. In Livingston" }, { "docid": "6088826", "title": "", "text": "provide constitutional protections as a matter of right. Cf. Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) ... We decline to produce such a result through recognition of inherent tribal authority.” Duro, 495 U.S. beginning at 693, 110 S.Ct. 2053. Examining such language, Indian tribal members are of course “American citizens” being brought before a tribunal, albeit of their own tribe, that does not provide constitutional protections as a matter of right. Given the fact that Congress had not then acted to even arguably delegate any authority to prosecute nonmember Indians, I interpret the quoted language as nothing more than dicta. I certainly decline any thought of judicially amending the Indian Civil Rights Act to conform to the Bill of Rights. [¶ 12] Archambault has attempted to establish that the tribal court was, in effect, a creature or arm of the United States government (and thus without sovereignty as to criminal prosecutions) because of the annual multi-million dollar federal appropriations made to the tribe for police, courts, and prosecutors. The magistrate found that this evidence had no relevance and I agree. Common sense tells us that the vast majority of the expenditures are in connection with the tribe prosecuting its own enrolled members rather than Indian nonmembers. Carried to its logical conclusion, the argument of the defendant would mean that, given the federal appropriations to states, counties and municipalities for law enforcement purposes, states would not be separate sovereigns but merely agents of the federal government. This simply makes no sense. [¶ 13] The magistrate, in recommending that the motion to dismiss be denied, relied largely on Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). Under Montana, a tribe may retain inherent power to exercise jurisdiction over a nonmember Indian when that person’s conduct “threatens or 'has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” 450 U.S. at 566, 101 S.Ct. 1245. Montana dealt with hunting and fishing rights of non-Indians on land owned in fee by non-Indians, although" }, { "docid": "17561742", "title": "", "text": "the tribunal, but also to the prosecuting power of the tribe, and involves a far more direct intrusion on personal liberties.” Id. at 688, 110 S.Ct. 2053. Because all Indians are also full citizens of the United States, such an intrusion necessarily implicates “constitutional limitations,” including the “fundamental basis for power within our constitutional system” that authority to govern is derived from “the consent of the governed.” Id. at 693-94, 110 S.Ct. 2053. Criminal trial and punishment is so serious an intrusion on personal liberty that its exercise over non-Indian citizens was a power necessarily surrendered by the tribes in their submission to the overriding sovereignty of the United States, [citation omitted]. We hesitate to adopt a view of tribal sovereignty that would single out another group of citizens, nonmember Indians, for trial by political bodies that do not include them. As full citizens, Indians share in the territorial and political sovereignty of the United States. The retained sovereignty of the tribe is but a recognition of certain additional authority the tribes maintain over Indians who consent to be tribal members. Indians like all other citizens share allegiance to the overriding sovereign, the United States. A tribe’s additional authority comes from the consent of its members, and so in the criminal sphere membership marks the bounds of tribal authority. Id. at 693, 110 S.Ct. 2053. Thus, “the sovereignty retained by the tribes in their dependent status within our scheme of government,” does not include “the power of criminal jurisdiction over nonmembers.” Id. at 684, 110 S.Ct. 2053. Instead, the fundamental status of an Indian who is not a member of the tribe that seeks to prosecute him is identical to that of a non-Indian. See id. at 693, 110 S.Ct. 2053. Congress responded to Duro by amending the Indian Civil Rights Act (ICRA), 25 U.S.C. §§ 1301-03 (1983 & Supp.1998). The amendment redefined the statute’s definition of “powers of self-government” to include “the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians.” 25 U.S.C. § 1301(2). It also created a definition of “Indian,”" }, { "docid": "84691", "title": "", "text": "all Indians; (3)“Indian court” means any Indian tribal court or court of Indian offense; and (k,)“lndian” means any person who would be subject to the jurisdiction of the United States as an Indian under section 1153 of Title 18 if that person were to commit an offense listed in that section in Indian country to which that section applies. 25 U.S.C. § 1301, as amended by Pub.L. No. 101-511, § 8077 (1990) (emphasis added). While the new language appears merely to acknowledge the existing state of the law, the 1990 amendments were added by Congress in direct response to the Supreme Court case of Duro v. Reina, 495 U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990). See, e.g., Impact of Supreme Court Ruling in Duro v. Reina: Hearing on S. 962, S. 963 Before the Senate Select Comm. on Indian Affairs, Senate Hearing 158, pts. 1 & 2, 102 Cong., 1st Sess. (1991). Duro had held that an Indian tribe does not have criminal jurisdiction over Indians who are not members of that tribe. Duro, 495 U.S. at 679, 110 S.Ct. 2053. Thus the amendments to the ICRA did constitute a change in the existing law. (i) The law prior to the 1990 amendments Immediately prior to the passage of the 1990 amendments, Duro was clearly the governing law. Prior to Duro, however, it was not clear whether Indian tribal courts could exercise criminal jurisdiction over all Indians, or just over the members of their own tribes. On the other hand, it has been clear since the late 1970s both that Indian tribes cannot exercise criminal jurisdiction at all over “non-Indians,” Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 212, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978), and that tribes can exercise criminal jurisdiction over their own members. United States v. Wheeler, 435 U.S. 313, 322, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978). In Duro, the Supreme Court explicitly resolved the remaining issue of “non-member Indians,” which it described as “at the intersection of these two precedents.” Duro, 495 U.S. at 684, 110 S.Ct. 2053. Duro involved a member" }, { "docid": "3176011", "title": "", "text": "activities of nonmembers of the tribe.’ ” (quoting Montana, 450 U.S. at 565, 101 S.Ct. at 1258). The Court also noted that “tribes retain considerable control over nonmember conduct on tribal land.” Id. at -, 117 S.Ct. at 1413. Here, only tribal conduct is at issue. The legislative history and precedent thus reinforces our conclusion that this dispute involves an “internal tribal matter” and that, accordingly, no claim is stated under § 1983 or under Maine law. The judgment of the district court is affirmed. Costs to appellees. . The Narragansett tribe in Rhode Island is also governed by a Claims Settlement Act. See 25 U.S.C. §§ 1701-06 (1978); Narragansett Indian Tribe v. Narragansett Elec. Co., 89 F.3d 908 (1st Cir.1996). . That section also provides certain immunities from suit. We do not reach the issue of immunity- . The Settlement Act at 25 U.S.C. § 1735(a) recites that in the event of any conflict between that Act and the Maine Implementing Act, the federal statute prevails. . While Akins may view a tribal court as a less desirable forum than federal court, the Supreme Court has said that \"even if a jurisdictional holding occasionally results in denying an Indian plaintiff a forum to which a non-Indian has access, such disparate treatment of the Indian is justified because it is intended to benefit the class of which he is a member by furthering the congressional policy of Indian self-government.” Fisher v. District Ct., 424 U.S. 382, 390-91, 96 S.Ct. 943, 948, 47 L.Ed.2d 106 (1976). The Court has recognized that subjecting purely in-tra-tribal disputes to state jurisdiction has the potential to undermine the authority of tribal courts and of the tribal government. See Santa Clara Pueblo, 436 U.S. at 59-60, 98 S.Ct. at 1677-78. . The Penobscot Nation concedes, both in its brief and again at oral argument, that Akins's equal protection and due process claims may be brought under the Indian Civil Rights Act, and may be brought against the Nation, in the Penob-scot Nation Tribal Court. . That language is used in part to define the meaning of" }, { "docid": "20008367", "title": "", "text": "are constitutional only if they are narrowly tailored measures that further compelling governmental interests.” Adarand, 515 U.S. at 227, 115 S.Ct. at 2113. These two lines of authority may be reconciled, plaintiffs argue, on the basis that the preference in Mancari was limited to members of federally recognized Indian tribes, while the preference in Adarand was not so limited, and thus constituted - in the Court’s words in Mancari - a preference “granted to Indians ... as a discrete racial group,” 417 U.S. at 554, 94 S.Ct. at 2484; see United States Air Tour Ass’n v. FAA, 298 F.3d 997, 1012 n. 8 (D.C.Cir.2002); Narragansett Indian Tribe, 158 F.3d at 1340-41. That distinction aside, the Supreme Court has made it clear enough that legislation for the benefit of recognized Indian tribes is not to be examined in terms applicable to suspect racial classifications. Not only in Mancari, but also in Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 500-01, 99 S.Ct. 740, 761-62, 58 L.Ed.2d 740 (1979), the Court held that “ ‘the unique legal status of Indian tribes under federal law’ permits the Federal Government to enact legislation singling out tribal Indians, legislation that might otherwise be constitutionally offensive” (quoting Mancari, 417 U.S. at 551-52, 94 S.Ct. at 2483). Despite these precedents, plaintiffs argue that § 8014(3) should be tested by “strict scrutiny” rather than rational basis review because the Supreme Court in Mancari thought it important that the preference for tribal members there applied only to employment in the Indian service. See Rice v. Cayetano, 528 U.S. 495, 519-20, 120 S.Ct. 1044, 1058-59, 145 L.Ed.2d 1007 (2000); Williams v. Babbitt, 115 F.3d 657, 663-64 (9th Cir.1997). Hence the Court did not have to face what it called “the obviously more difficult question” whether “a blanket exemption for Indians from all civil service examinations” would be constitutional. Mancari, 417 U.S. at 554, 94 S.Ct. at 2484-85. The preference in § 8014(3), plaintiffs say, is analogous to such a blanket exemption: it is not restricted to Indian activities on or near reservations or Indian land;" }, { "docid": "8081036", "title": "", "text": "include] the power of criminal jurisdiction over [non-member Indians].” Id. at 679, 684, 110 S.Ct. 2053. In so holding, the Court noted that the Indian tribes are “limited sovereigns [that are] necessarily subject to the overriding authority of the United States.” Id, at 685, 110 S.Ct. 2053. Although the Court recognized that the tribes never explicitly surrendered their criminal jurisdiction over non-member Indians, the Court found that the exercise of such jurisdiction, in the absence of congressional authorization, would be inconsistent with the dependent status of the tribes. Id. at 686-96, 110 S.Ct. 2053. Thus, the Court in Duro held that the Pima-Maricopa Indian Community Court lacked criminal jurisdiction over Duro, a non-member Indian. Id, at 698, 110 S.Ct. 2053. II. The 1990 Indian Civil Rights Act Amendments and the Impact of the Amendments in Light of Duro Congress reacted to the Du.ro decision by passing the 1990 amendments to the Indian Civil Rights Act (“ICRA”) (hereinafter referred to as the “1990 amendments” or the “1990 ICRA amendments”). The ICRA originally defined the Indian tribes’ “powers of self-government” as “all governmental powers possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed, including courts of Indian offenses.” Pub.L. 90-284, tit. II, § 201, 82 Stat. 77 (Apr. 11, 1986), codified at 25 U.S.C. § 1301(2) (1982). In the wake of Duro, Congress expanded the definition to state clearly that the tribes’ “powers of self government” also include “the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians.” 25 U.S.C. § 1301(2) (emphasis added). What is more, the legislative record unmistakably characterizes the amendments as a recognition and affir-mance of the tribes’ historical and inherent sovereign authority over non-member Indians. See United States v. Weaselhead, 36 F.Supp.2d 908, 914-15 (D.Neb.1997), aff'd by an equally divided court, 165 F.3d 1209 (8th Cir.1999) (en banc); see also Means v. N. Cheyenne Tribal Court, 154 F.3d 941, 943-44, 946-47 (9th Cir.l998). We first addressed the impact of these amendments in Means. 154 F.3d 941 (9th" }, { "docid": "17561741", "title": "", "text": "at 208, 98 S.Ct. 1011; see also Montana v. United States, 450 U.S. 544, 565, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981) (recognizing “general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe”). In Duro v. Reina, 495 U.S. 676, 685, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990), the Court confirmed its earlier statements that, at least in criminal matters, a tribe’s inherent sovereign powers extend only to tribe members, irrespective of an individual’s racial status as an Indian. It recognized that when a criminal prosecution reflects a “manifestation of external relations between the Tribe and outsiders,” including nonmember Indians, such jurisdiction is necessarily “inconsistent with the Tribe’s dependent status, and could only have come to the Tribe by delegation from Congress.” Id. at 686, 110 S.Ct. 2053. Importantly, any such congressional delegation of power is “subject to the constraints of the Constitution.” Id. This is so because “[t]he exercise of criminal jurisdiction subjects a person not only to the adjudicatory power of the tribunal, but also to the prosecuting power of the tribe, and involves a far more direct intrusion on personal liberties.” Id. at 688, 110 S.Ct. 2053. Because all Indians are also full citizens of the United States, such an intrusion necessarily implicates “constitutional limitations,” including the “fundamental basis for power within our constitutional system” that authority to govern is derived from “the consent of the governed.” Id. at 693-94, 110 S.Ct. 2053. Criminal trial and punishment is so serious an intrusion on personal liberty that its exercise over non-Indian citizens was a power necessarily surrendered by the tribes in their submission to the overriding sovereignty of the United States, [citation omitted]. We hesitate to adopt a view of tribal sovereignty that would single out another group of citizens, nonmember Indians, for trial by political bodies that do not include them. As full citizens, Indians share in the territorial and political sovereignty of the United States. The retained sovereignty of the tribe is but a recognition of certain additional authority the tribes maintain over Indians" }, { "docid": "6088865", "title": "", "text": "121 S.Ct. at 1831-32 (a tribe’s inherent power to tax does not extend to nonmember activity occurring on non-Indian fee land). A tribe’s authority to punish Indian nonmembers for criminal conduct perpetrated against tribal members on tribal property is essential to tribal self-government and/or internal relations given the multitude of nonmember Indians who live on reservations and the number and frequency of crimes that occur in this context each day. See and compare Hicks, 533 U.S. at -, 121 S.Ct. at 2316 (tribal self-government and internal relations are not threatened or otherwise affected by “a narrow category of outsiders”); Atkinson, 121 S.Ct. at 1834-35 (operation of a hotel on non-Indian fee land did not endanger the tribe’s political integrity). [¶ 9] Although the Supreme Court in Duro, temporarily limited the reach of tribal authority over nonmember Indians in criminal cases, Congress, acting pursuant to its plenary power under the Indian Commerce Clause, quickly rejected the Court’s holding when it amended the Indian Civil Rights Act (ICRA) on October 24, 1990, to acknowledge, confirm and prospectively restore the inherent authority of Indian tribes over all Indians, including nonmembers. It is beyond dispute that Congress is empowered to “deal with the special problems [facing] Indians” and to “legislate on [their] behalf, using its authority under the Indian Commerce Clause”. Morton v. Mancari, 417 U.S. 535, 551-52, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974); see also, Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192, 109 S.Ct. 1698, 104 L.Ed.2d 209 (1989) (“the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs”). More importantly, Congress has the power to alter inherent sovereignty that Indian tribes possess because it has legislative authority over federal common law. Enas, 255 F.3d at 673-75; see also, Milwaukee v. Illinois and Michigan, 451 U.S. 304, 313-14, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981) (“federal common law is ‘subject to the paramount authority of Congress’ ”); Washington v. Confederated Bands & Tribes of Yakima Nation, 439 U.S. 463, 501, 99 S.Ct. 740, 58 L.Ed.2d 740" }, { "docid": "8081034", "title": "", "text": "tribal courts do not have inherent criminal jurisdiction over non-Indians. 435 U.S. at 212, 98 S.Ct. 1011. The Court reasoned that to permit the tribes to exercise such jurisdiction in the absence of congressional authorization would be inconsistent with the dependent status of the tribes. Later that Term, in United States v. Wheeler, the Supreme Court held that the tribes retained inherent sovereign authority to prosecute member Indians for offenses committed on the reservation. 435 U.S. at 323-24, 98 S.Ct. 1079. The Wheeler Court explained: “[T]he sovereign power to punish tribal offenders has never been given up ... and [the] tribal exercise of that power today is therefore the continued exercise of retained tribal sovereignty.” Id. Because the Wheeler Court found that the tribes have inherent criminal jurisdiction over member Indians, the Coui't held that successive tribal and federal prosecutions of member Indians do not offend the Double Jeopardy Clause. See id. The Supreme Court did not consider the issue whether the tribes retain inherent sovereignty to prosecute non-member Indians until Duro v. Reina, 495 U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990). Albert Duro, an enrolled member of the Torres-Martinez Band of Cahuilla Mission Indian Tribe, allegedly shot and killed a member of the Gila River Indian Tribe on a Salt River Pima-Maricopa Indian Reservation. Duro, 495 U.S. at 679-81, 110 S.Ct. 2053. Following the shooting, Duro was placed in the custody of Pima-Marico-pa officers and was charged with the illegal firing of a weapon in Pima-Maricopa Indian Community Court. Id. at 681, 110 S.Ct. 2053. Duro filed a motion to dismiss the prosecution for lack of jurisdiction, which was denied by the tribal court. Id. Duro then challenged the jurisdiction of the Prima-Maricopa Community Court by filing a petition for writ of habeas corpus in United States District Court. Id. at 681-82, 110 S.Ct. 2053. The district court granted the writ, but a divided panel of the Ninth Circuit reversed. Id. The Supreme Court granted certiorari and ultimately held that “the sovereignty retained by the tribes in their dependent status within our scheme of government [does not" } ]

[ { "docid": "1308268", "title": "", "text": "Block also emphasizes that the Chinese references correctly disclose many of potassium nitrate's characteristics, like burning with a violet flame, useability for making signal fires and gun powder, and its water solubility; these three properties of xiao shi in the Chinese references definitely confirm, according to Block, that xiao shi is potassium nitrate, KNO3. B. The European Prior Art This art is contained in six references and was not relied upon to any significant degree by Block or the district court. Ho-dosh scarcely mentions it on appeal, instead preferring to show the existence of genuine issues of material fact with respect to the Chinese references. After concluding that using potassium nitrate to cure tooth pain would have been obvious from Rosenthal in view of the Chinese art, the court stated: “Such holding is strengthened by the European prior art which, while ambiguous because of the several conflicting definitions in the term ‘niter/ at least suggest to one skilled in the art that potassium nitrate ought to be tried as a cure for tooth pain in general.” Block submitted no affidavits that addressed the substance of the European references. Hodosh’s Dr. Shklar, on the other hand, stated why this art, part of the “humors, spirits and Alchemy of the Dark Ages” having whatever medicinal effect they did by virtue of their use of wine, opium, or other narcotic substances, would have been questioned by one skilled in the art. He specifically contends that Block’s translation of “nitre” is erroneous: “it is common knowledge that these terms meant sodium carbonate and/or sodium carbonate-sodium bicarbonate mixture____” To afford a glimpse of the nature of these references, an interesting and typical excerpt, one quoted by the district court, based upon a statement by the long since deceased French surgeon Guy de Chauliac reads that “a mixture of ‘cuttlebone, small white sea shells, pumice, burnt stag’s horn, nitre, alum, rock salt, burnt roots of iris, aristolochia, and reeds’ could create an effective dentifrice.” (District court’s emphasis.) Three of the European references are based on that statement. The district court noted the others: Additionally, a 1693" } ]

[ { "docid": "15945595", "title": "", "text": "the district court makes the unsupported finding that “[mjany in the art knew as of 1982 that carbon beds leached contaminants which could be removed by ion exchange.” Id. at *21. In support of this statement, the district court relies upon the Martinola reference, and U.S. Patent No. 4,430,226 (“the ’226 patent”) for a disclosure that “activated carbon leaches dissolved contaminants.” For the disclosure of the “removal of dissolved carbon contaminants by ion exchange”, the district court relied upon the ’226 patent and John W. Hassler’s 1974 article “Purification with Activated Carbon,” which do state that with some types of carbon, “ion-exchange resins have been employed to remove inorganic compounds, alkalinity, or acidity not ab-sorbable by activated carbon.” J.A. at 1893. However, while these references teach the leaching of dissolved contaminants by activated carbon and the use of ion-exchange resins to remove carbon contaminants, neither reference suggests combining, nor provides any motivation to so combine, the two elements of the Ecolo-chem process, i.e., deoxygenation of the water by the Houghton process and dem-ineralization of the water by the mixed bed. The district court seems to find that the Martinola reference implicitly suggests the combination of the two elements, but discounts “[t]he fact that Martinola did not make Ecolochem’s invention, and instead focused on the hydrogen-palladium method of deoxygenation [a]s not relevant.” Id. at *39. The district court clearly erred in this regard. This fact is completely relevant to the obviousness analysis, since Martinola actually teaches away from combining at least one of the Martinola articles with the Houghton process to achieve Eco-lochem’s claimed process. While the Mar-tinola reference describes a hydrogen and Lewatit-based deoxygenation process and mentions deoxygenation by carbon catalysis of a hydrazine/oxygen reaction, it does so only for comparative purposes. The Martinola reference actually unfavorably compares the hydrazine/carbon process, saying that it “releases salts into the dem-ineralized water” and that the hydrogen-based process is energy saving and significantly less expensive. The Martinola reference is not the only reference that points to problems and concerns with the Houghton process. The Houghton article was challenged from the day it was" }, { "docid": "20015160", "title": "", "text": "Smith Henley, United States Senior Circuit Judge, United States Court of Appeals for the Eighth Circuit, sitting by designation. . Water generally contains varying amounts of dissolved molecular oxygen. This is the oxygen that, in rivers and streams, fish breathe by use of gills. . These ionic salts which leached into the effluent were calcium, magnesium, bicarbonate, sodium, silica, sulfate, chloride and potassium. The concentration at which these contaminants were present in the effluent from the Houghton process was unacceptable in the power industry as some could lead to corrosion. Silica was particularly undesirable as it would build up on the turbine blades and quickly reduce their efficiency. . A mixed bed resin is a resin column with the ability to exchange either positive ions (cations) or negative ions (anions). Thus, when the effluent from the Houghton process passes through the mixed bed resin, any positive ions (such as calcium (Ca+)) will remain on the resin and a hydrogen ion (H+) will be released into the water. Likewise, negatively charged ions are exchanged on the resin for hydroxyl (-OH) ion. The hydrogen and hydroxyl ions thus released may then combine to form water. The net result is to remove ionic impurities in exchange for water. .It was also necessary to periodically regenerate the mixed bed ion exchange resin when, after a large volume of water was deoxygenated, the hydrogen and hydroxyl ions originally present on the resin would be replaced by the ionic contaminants. The mobile nature of the system allowed for periodic returns to Ecolochem’s plant to regenerate the resin. . The diagram discussed is for water that will be used as make-up-water for boilers, cooling water for generators, and water for nuclear reactors. Id. at 82. All these applications require water that is not only deoxygenated to very low levels, but is also free from ionic contaminants. . The Houghton article, the Martinola article, the Bechtel Publication and the Russian reference all teach the combination of the first two steps of the process patented in the ’492 Patent. The Hassler book teaches the use of ion exchange following" }, { "docid": "20015148", "title": "", "text": "(1984). The inquiry is whether “there is something in the prior art as a whole to suggest the desirability, and thus the obviousness, of making the combination” of old elements. Custom Accessories, Inc., 807 F.2d at 959 (quotation omitted) (emphasis in original). As discussed in the prior section on anticipation, both the Martinola article and the Bechtel publication recognize the potential of the Houghton process and caution that the use of activated carbon may release impurities into the effluent. Neither reference endeavors to analyze the nature of the impurities nor discuss how such impurities may be removed. Ecolochem’s expert testified that the prior art revealed that some forms of activated carbon may be expected to give off ionic contaminants. See, e.g., J.W. Hassler, Purification with Activated Carbon 51 (1974) (“In general, the use of the ion-exchanger should follow the treatment with carbon, especially if the carbon contains any appreciable amount of soluble inorganic compounds”) (Def. Ex. No. 15). The prior art also describes the use of ion exchange resins to remove dissolved ionic contaminants in water. 2. The Differences Between the Prior Art and the Claims at Issue. Ecolochem readily concedes that each individual component or process in the '492 Patent is well recognized in the prior art. Ecolochem also recognizes that prior art references teach combinations of two of the three, see supra pp. 779-80, major components of the ’492 Patent. The difference between the prior art and the claims in the ’492 Patent is the combination of the separate components in a single embodiment. 3. Level of Ordinary Skill in the Art at the Time of the Invention. The art to which the ’492 Patent relates is water treatment and purification. Factors that may be considered in determining level of skill include: type of problems encountered in art; prior art solutions to those problems; rapidity with which innovations are made; sophistication of the technology; and educational level of active workers in the field. Custom Accessories, Inc., 807 F.2d at 962; Environmental Designs, Ltd., 713 F.2d at 696. Determining the ordinary level of skill is critical to the question" }, { "docid": "15945598", "title": "", "text": "desirable than activated carbon since there would be no tendency to ‘deactivate’ magnetite in filtered water,” and thereby taught away from the idea of using a carbon bed as the catalyst. J.A. at 1696H. In 1962, a paper was presented at the International Water Conference, stating that research had shown two methods “to remove oxygen to sufficiently low levels with adequate capac ities to be practical.” Piero Sturla, Polishing Condensate and Dearating by Ion Exchange at 63 (1962). Neither of these methods was based on the Houghton process. These two methods were still being used in 1977, when Culligan (a water treatment company) recommended one of the two in an internal memo for use in portable containers, and the challenges continued through the time of the invention. Even Ecolochem’s scientists themselves testified that, prior to their successful tests, they did not believe they would be able to replicate the results stated in the Houghton article. Furthermore, the district court found even the mixed bed, of which the use “to remove carbon contaminants was well known in the field,” had detractors. Ecolochem, at *39. Edison’s own engineers testified that they considered: a four-bed [a primary cation bed, a primary anion bed, a secondary cation bed and a secondary anion bed] system superior to ... a three-bed system [a cation bed, an anion bed and a mixed bed] ... because of the problems that Edison had encountered in regenerating the mixed bed, ... and based on ... personal experience that four-bed systems generally outperformed mixed bed systems in producing pure water. Id. at *13. There is clear evidence of teaching away in the prior art from both the demineralization process and the deox-ygenation process used by Ecolochem, and no evidence that there was any suggestion in the prior art to combine these two processes, yet the district court finds the ’411 patent obvious in light of the prior art. The absence of a convincing discussion of the specific sources of the motivation to combine the prior art references, particularly in light of the strength of prior art teaching away from the use" }, { "docid": "15945594", "title": "", "text": "levels of conductivity caused by the presence of ionic contaminants. Nor does the district court then provide support for its implicit finding that given water so contaminated, it would be obvious to one of ordinary skill in the art to place a mixed bed ion exchange resin downstream of the carbon bed. In fact, nowhere does the district court particularly identify any suggestion, teaching, or motivation to combine the Houghton process with a mixed bed ion exchange resin to achieve the patented process. The district court avoids the issue, and makes implicit findings, but can point to nothing that suggests the combination of deoxygenation and demineralization processes that comprise Ecolochem’s invention. For instance, the district court finds that Ecolochem “did not try any other way to remove the ionic contaminants leached by the carbon bed other than adding the mixed bed,” Ecolochem, at *12, and that “[t]here is no evidence that any system for production of ultra-pure water ever included a carbon bed as the final step in water treatment.” Id. at *22. In addition, the district court makes the unsupported finding that “[mjany in the art knew as of 1982 that carbon beds leached contaminants which could be removed by ion exchange.” Id. at *21. In support of this statement, the district court relies upon the Martinola reference, and U.S. Patent No. 4,430,226 (“the ’226 patent”) for a disclosure that “activated carbon leaches dissolved contaminants.” For the disclosure of the “removal of dissolved carbon contaminants by ion exchange”, the district court relied upon the ’226 patent and John W. Hassler’s 1974 article “Purification with Activated Carbon,” which do state that with some types of carbon, “ion-exchange resins have been employed to remove inorganic compounds, alkalinity, or acidity not ab-sorbable by activated carbon.” J.A. at 1893. However, while these references teach the leaching of dissolved contaminants by activated carbon and the use of ion-exchange resins to remove carbon contaminants, neither reference suggests combining, nor provides any motivation to so combine, the two elements of the Ecolo-chem process, i.e., deoxygenation of the water by the Houghton process and dem-ineralization of the" }, { "docid": "15945588", "title": "", "text": "to all other claims at issue. A. The Houghton Process as a “Blueprint” The district court essentially found that the most innovative aspect of Ecolochem’s process was its “[ujnearthing [of] long-neglected art,” holding that “Ecolochem’s good fortune in obtaining the Houghton reference just as the EPRI guidelines created increased attention in the PWR industry to the problem of ambient temperature deoxygenation does not entitle Ecolochem to patent protection.” Id. at *33. Houghton was the co-author of a paper on deoxygenation by carbon catalysis of the reaction between hydrazine and dissolved oxygen, entitled “The Use of Active Carbon With Hydrazine in the Treatment of Boiler Feed Water” (“the Houghton article”). The Houghton article was presented at the 1957 International Water Conference at Bournemouth, England and brought to the attention of Ecolochem at the 1982 International Water Conference. The Houghton article peaked the interest of Ecolochem, and its scientists began performing experiments to determine if the results predicted in Houghton’s paper could be replicated in a laboratory setting. Ecolochem’s scientists were skeptical, because they “had understood that hydrazine reacted very slowly with dissolved oxygen and one of [their] objectives in [the] preliminary experimentation was to run the process to determine if the Houghton process sufficiently catalyzed the reaction.” Miller Deck ¶ 22. The tests supported the Houghton article, but also revealed the presence of ionic substances in the deoxy-genated water coming out of the carbon bed. Houghton did not discuss the ionic contamination. Ecolochem performed subsequent tests to assess its attempts to reduce the presence of the ionic substances, and after considerable experimentation, eventually succeeded with the patented process after more research and considerable experimentation. The district court found that “for years it had been known in the art of water treatment that activated carbon releases ionic substances into water,” but that Ecolochem’s scientists, who the district court found had been employed in the water treatment industry for over a decade by the time the patent issued, were unaware of this contamination at the time they conducted their experiments. Ecolochem, at *11. The district court recognized that the Houghton reference did not" }, { "docid": "20015139", "title": "", "text": "analysis revealed a variety of ionic contaminants which the inventors concluded leached from the activated carbon. Ecolochem experimented with a mixed bed ion exchange resin downstream from the Houghton process in an effort to remove the ionic contaminants. The addition of the mixed bed resin achieved the desired result of removing the ionic contaminants. Ecolochem then tested the process on a larger commercial scale and decided to implement the process for commercial use. The entire apparatus was designed to be installed on a semi tractor-trailer so the process would be mobile and could be transported between cities as Ecolochem’s deoxygenation services were needed. Ecolochem first used the process commercially in the summer of 1983, under a secrecy agreement, at Southern California Edison’s San Onofre nuclear generating facility. Southern California Edison was very pleased with the quality of water supplied by Ecolochem’s process, and it proved to be both commercially feasible and profitable. On December 16,1983, the inventors filed a patent application on the deoxygenation process. After being initially rejected, the ’492 Patent was awarded on December I, 1985. Mobile Water has commercially marketed a deoxygenation process which it admits infringes claims one through six, eight, nine, fifteen and sixteen of the ’492 Patent. Ecolochem commenced this suit to enjoin the infringement and recover damages for past infringement. Mobile Water defends its activity, alleging the ’492 Patent is invalid on the basis of anticipation and obviousness. II. THE VALIDITY OF THE ’492 PATENT. Ecolochem enjoys a presumption of validity in its patent. 35 U.S.C. § 282. The burden of proving invalidity rests on the challenger, Mobile Water, and that burden is one of clear and convincing evidence. Id.; Medtronic, Inc. v. Intermedies, Inc., 799 F.2d 734, 741 (Fed.Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 882, 93 L.Ed.2d 836 (1987). In determining whether the challenger has met its burden, it is not the duty of this court to assume the role of “Super Patent Examiner” and determine whether the judge personally thinks the invention should or should not have been patented. Markey, On Simplifying Patent Trials, 116 F.R.D. 369, 375-76 (1987)." }, { "docid": "20015145", "title": "", "text": "Russian scientists. Akol’zin & Kostrikira, Catalytic Oxidation of Hydrazine with Atmospheric Oxygen Dissolved in Water, UDC 546.-171.5 (Woolcott & Co., Patent Translation Services) (Def. Ex. No. 9). The Russian article recognized the use of activated carbon to catalyze the hydrazine-oxygen reaction. Id. at 10. The article also discussed the use of an ion exchanger following the activated carbon. Id. at 10-11. The court finds this reference not to anticipate the ’492 Patent for two reasons. First, the ion exchanger is referred to only as AV-17. Ecolochem’s expert testified that he believed that this referred to an anion exchange resin. Mobile Water’s expert was unable to give an opinion whether the AV-17 came within the scope of the ’492 Patent. It should be recalled that the '492 Patent called for a mixed bed resin consisting of both anion and cation exchange resins. Second, Akol’zin’s paper does not describe whether ionic contaminants are leached from the activated carbon. Thus, it is unclear why Akol’zin included the AV-17 ion exchange resin downstream from the activated carbon catalyst. The article certainly does not teach the use of a mixed bed resin to remove ionic impurities introduced by leaching from the activated carbon. In sum, the court finds that none of the three references cited by Mobile Water anticipates all the elements of any claim of the ’492 Patent. Thus, the court turns to Mobile Water’s other affirmative defense— obviousness. B. OBVIOUSNESS—FACTUAL INQUIRIES. A patent is invalid if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. 35 U.S.C. § 103. The ultimate question of obviousness is one of law based on a series of factual inquiries. Custom Accessories, Inc. v. Jeffrey-Allan Industries, Inc., 807 F.2d 955, 958 (Fed.Cir.1986). The court’s factual inquiry encompasses four areas: (1) the scope and content of the prior art; (2) the difference between the prior art and the claims" }, { "docid": "20015138", "title": "", "text": "of the ’492 Patent, was introduced to meet this need. The ’492 Patent is a combination of several well known processes. The first step is the addition of hydrazine (N2H4) to the water to be deoxygenated. The hydrazine reacts with the dissolved oxygen to yield water and nitrogen gas. Because this reaction does not proceed quickly at low temperatures, the ’492 Patent includes a second step of passing the water and hydrazine through a bed of activated carbon. The activated carbon catalyzes the hydrazine-oxygen reaction allowing it to proceed quickly at low temperatures. This two-step process was well known in the literature. See Houghton & Cuerdon, The Use of Active Carbon with Hydrazine in the Treatment of Boiler Feed Water, International Water Conference, Bournemouth, England pp. 54-58 (1957) (Def. Ex. 16) (throughout the record the parties refer to these first two steps of the ’492 Patent as the Houghton process). The inventors of the ’492 Patent, Ecolochem employees, analyzed the effluent from the Houghton process and determined that impurities were introduced by the process. Further analysis revealed a variety of ionic contaminants which the inventors concluded leached from the activated carbon. Ecolochem experimented with a mixed bed ion exchange resin downstream from the Houghton process in an effort to remove the ionic contaminants. The addition of the mixed bed resin achieved the desired result of removing the ionic contaminants. Ecolochem then tested the process on a larger commercial scale and decided to implement the process for commercial use. The entire apparatus was designed to be installed on a semi tractor-trailer so the process would be mobile and could be transported between cities as Ecolochem’s deoxygenation services were needed. Ecolochem first used the process commercially in the summer of 1983, under a secrecy agreement, at Southern California Edison’s San Onofre nuclear generating facility. Southern California Edison was very pleased with the quality of water supplied by Ecolochem’s process, and it proved to be both commercially feasible and profitable. On December 16,1983, the inventors filed a patent application on the deoxygenation process. After being initially rejected, the ’492 Patent was awarded on" }, { "docid": "15945569", "title": "", "text": "been both demineralized and deoxygenated. The Electrical Power Research Institute (“EPRI”), a research organization for the power industry, published new guidelines in 1982, recommending the use of deoxy-genated water in PWRs. These guidelines were soon implemented throughout the utility industry. In direct response to these guidelines, Edison asked Ecolochem to deoxygenate the make-up water used in SONGS. Shortly thereafter, Ecolochem began developing the patented process at issue in the instant case. Once construction of the HFMUD was finished, Edison had no further need for Ecolochem’s services, being able to now produce, on its own, sufficient, high purity, deoxygenated make-up water by passing the water through the HFMUD. The HFMUD passes the make-up water through a strong acid cation resin bed, a predominantly weak base anion resin bed, an activated carbon bed, a second strong acid cation resin bed, a strong base anion bed, and, finally, a vacuum deareator. This process removes suspended, undissolved solids and dissolved impurities, including salt, mineral ions, organic chemicals, and oxygen. Ecolochem alleged that Edison’s process, as described above, infringes its ’411 patent. Ecolochem asserted all three independent claims of the ’411 patent, and multiple dependent claims. The independent claims read as follows: 1. A deoxygenation process comprising a first step of contacting a liquid contacting [sic] dissolved oxygen and hydrazine with a bed of activated carbon to catalyze a reaction between said dissolved oxygen and a portion of said hydrazine, whereby an amount of dissolved carbon contaminants is added to said liquid, and a second step of removing said contaminants and said unreacted hydrazine that comprises passing said liquid through a strong acid cation exchange resin and a strong base anion exchange resin. 15. A deoxygenation process comprising a first step of contacting water containing dissolved oxygen and hydrazine with a bed of activated carbon to catalyze a reaction between said dissolved oxygen and a portion of said hydrazine, whereby an amount of dissolved and undissolved activated carbon contaminants are added to said water, a second step of removing said dissolved contaminants and said unreacted hydrazine by passing said water through a strong acid cation" }, { "docid": "20015161", "title": "", "text": "resin for hydroxyl (-OH) ion. The hydrogen and hydroxyl ions thus released may then combine to form water. The net result is to remove ionic impurities in exchange for water. .It was also necessary to periodically regenerate the mixed bed ion exchange resin when, after a large volume of water was deoxygenated, the hydrogen and hydroxyl ions originally present on the resin would be replaced by the ionic contaminants. The mobile nature of the system allowed for periodic returns to Ecolochem’s plant to regenerate the resin. . The diagram discussed is for water that will be used as make-up-water for boilers, cooling water for generators, and water for nuclear reactors. Id. at 82. All these applications require water that is not only deoxygenated to very low levels, but is also free from ionic contaminants. . The Houghton article, the Martinola article, the Bechtel Publication and the Russian reference all teach the combination of the first two steps of the process patented in the ’492 Patent. The Hassler book teaches the use of ion exchange following activited carbon. Combination of an activated carbon filter followed by ion exchange has also been recognized. U.S. Patent No. 3,985,648 (PI. Ex. No. 46); Demineralization Brings Down Cost of Pharmaceutical Manufacturing, Culligan Job Report No. 151 (Def. Ex. No. 20) (In both of these references the activated carbon serves to remove organic contaminants and protect the downstream ion exchange resins. The activated carbon is not used as a catalyst for some other reaction as in the '492 Patent). . This mythical being, incidentally, possesses a surname — Mr. Phosita (Person Having Ordinary Skill In The Art). Kimberly-Clark Corp. v. Johnson & Johnson, 745 F.2d 1437, 1454 n. 5 (Fed.Cir.1984). . Despite the failure of proof on the primary factors, the court finds that the secondary factors impel a conclusion that the '492 Patent was not obvious." }, { "docid": "15945625", "title": "", "text": "New Collegiate Dictionary 87 (1990). .A calion/anion exchange resin is a resin which, when brought in contact with liquid containing cation/anion contaminants, removes them. . On March 9, 2000, the Senate confirmed the nomination of Judge Richard A. Paez to the United States Court of Appeals for the Ninth Circuit. . The International Water Conference is an annual convention focusing on water treatment issues. . A mixed bed is a resin bed which, when brought in contact with liquid containing cation and/or anion contaminants, removes - them. In other words, a resin bed containing a mixture of cation and anion resins. . The '411 specification explains further that \"[i]n the prior art deoxygenaton [sic] processes, hydrazine has been used as a strong reducing agent to prevent corrosion and other problems associated with oxygenated water.” '411 pat., col. 1, 11. 27-30. A review of the prior art indicates that small amounts of hydrazine were used in the final stage of deoxygenation, after the thermal degassing or other chemical process had been used, to remove the last traces of oxygen, while keeping to a minimum the contaminate byproducts of the hydrazine process. . Dr. Martinola testified that, during his presentation, he described his paper as showing: [T]hat you can apply activated carbon as a catalyst and it will remove oxygen with hydrazine; but it has to be taken into account that the carbon releases salts in the demineralized water, and, afterwards, in Figure 10, there is shown a system with a catalyst column and a mixed bed. Martinola Dep. at 18:6-12. . William Miller, one of the inventors of the deoxygenation process described in the '411 patent, testified that he attended the International Water Conference in 1982 \"with the intention of finding alternative deoxygenation processes, if there were any.” Miller Decl. ¶ 19 (Oct. 28, 1997), J.A. at 931. By alternative, Mr. Miller was referring to processes other than deoxygenation through the use of a vacuum degasifier. While at the conference, Mr. Miller spoke to an Ecolochem area sales manager, John Pugsley. Mr. Pugsley worked for the Florida Power and Light Company" }, { "docid": "15945589", "title": "", "text": "hydrazine reacted very slowly with dissolved oxygen and one of [their] objectives in [the] preliminary experimentation was to run the process to determine if the Houghton process sufficiently catalyzed the reaction.” Miller Deck ¶ 22. The tests supported the Houghton article, but also revealed the presence of ionic substances in the deoxy-genated water coming out of the carbon bed. Houghton did not discuss the ionic contamination. Ecolochem performed subsequent tests to assess its attempts to reduce the presence of the ionic substances, and after considerable experimentation, eventually succeeded with the patented process after more research and considerable experimentation. The district court found that “for years it had been known in the art of water treatment that activated carbon releases ionic substances into water,” but that Ecolochem’s scientists, who the district court found had been employed in the water treatment industry for over a decade by the time the patent issued, were unaware of this contamination at the time they conducted their experiments. Ecolochem, at *11. The district court recognized that the Houghton reference did not anticipate the patent, but felt that: Taken together, the prior art references relevant to Ecolochem’s invention disclose all of the elements of the claimed invention, and their combined teachings would have suggested to one of ordinary skill in the art that the Houghton process could be followed by the use of mixed bed ion exchange resins to provide ambient temperature deoxygenation and remove excess hydrazine as well as dissolved and undissolved carbon contaminants. Id. at *34. “A patent may not be obtained ... if the differences between the [claimed invention] and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art.” 35 U.S.C. § 103(a) (Supp. III 1997). Our analysis of the patentability of Ecolo-chem’s invention begins with the phrase “at the time the invention was made.” Here, the date of the invention is presumed to be the filing date of the parent application, December 16, 1983. In In re Dembiczak, we noted" }, { "docid": "20015147", "title": "", "text": "at stake; (3) the level of ordinary skill in the art; and (4) objective evidence of nonobviousness (secondary factors). Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 693-694, 15 L.Ed.2d 545 (1966); Akzo N. V., 808 F.2d at 1480. 1. The Prior Art. In evaluating the prior art, the infringer “cannot pick and choose among individual parts of assorted prior art references ‘as a mosaic to recreate a facsimile of the claimed invention.’ ” Akzo N. V., 808 F.2d at 1481 (quoting W.L. Gore & Associates, Inc., 721 F.2d at 1552). Many patented inventions consist of the assemblage of existing well known elements in new and different ways. Accordingly, simply because each element is known and unpatentable in isolation, it does not necessarily follow that the combination of these elements is unpatentable. See Environmental Designs, Ltd. v. Union Oil Co. of California, 713 F.2d 693, 698 (Fed.Cir.1983) (“Virtually all inventions are combinations and virtually all combinations are of old elements”), cert. denied, 464 U.S. 1043, 104 S.Ct. 709, 79 L.Ed.2d 173 (1984). The inquiry is whether “there is something in the prior art as a whole to suggest the desirability, and thus the obviousness, of making the combination” of old elements. Custom Accessories, Inc., 807 F.2d at 959 (quotation omitted) (emphasis in original). As discussed in the prior section on anticipation, both the Martinola article and the Bechtel publication recognize the potential of the Houghton process and caution that the use of activated carbon may release impurities into the effluent. Neither reference endeavors to analyze the nature of the impurities nor discuss how such impurities may be removed. Ecolochem’s expert testified that the prior art revealed that some forms of activated carbon may be expected to give off ionic contaminants. See, e.g., J.W. Hassler, Purification with Activated Carbon 51 (1974) (“In general, the use of the ion-exchanger should follow the treatment with carbon, especially if the carbon contains any appreciable amount of soluble inorganic compounds”) (Def. Ex. No. 15). The prior art also describes the use of ion exchange resins to remove dissolved ionic contaminants in" }, { "docid": "15945593", "title": "", "text": "of a claimed invention which combines two known elements, ‘the question is whether there is something in the prior art as a whole to suggest the desirability, and thus the obviousness, of making the combination.’ ” In re Beattie, 974 F.2d 1309, 1311-12, 24 USPQ2d 1040, 1042 (Fed.Cir.1992) (quoting Lindemann, 730 F.2d at 1462, 221 USPQ at 488). In this case, the district court used the ’411 patent as a blueprint, with the Houghton process as the main structural diagram, and looked to other prior art for the elements present in the patent but missing from the Houghton process. The district court opinion does not discuss any specific evidence of motivation to combine, but only makes conclusory statements. “Broad conclusory statements regarding the teaching of multiple references, standing alone, are not ‘evidence.’ ” Dembiczak, 175 F.3d at 999, 50 USPQ2d at 1617. The district court provides no support for its broad conclusory statement that it was known in the art that a carbon bed, as used in the Houghton process, would produce water with high levels of conductivity caused by the presence of ionic contaminants. Nor does the district court then provide support for its implicit finding that given water so contaminated, it would be obvious to one of ordinary skill in the art to place a mixed bed ion exchange resin downstream of the carbon bed. In fact, nowhere does the district court particularly identify any suggestion, teaching, or motivation to combine the Houghton process with a mixed bed ion exchange resin to achieve the patented process. The district court avoids the issue, and makes implicit findings, but can point to nothing that suggests the combination of deoxygenation and demineralization processes that comprise Ecolochem’s invention. For instance, the district court finds that Ecolochem “did not try any other way to remove the ionic contaminants leached by the carbon bed other than adding the mixed bed,” Ecolochem, at *12, and that “[t]here is no evidence that any system for production of ultra-pure water ever included a carbon bed as the final step in water treatment.” Id. at *22. In addition," }, { "docid": "15945568", "title": "", "text": "Because water in the secondary system must be of extremely high purity, make-up water is supplied from a make-up demineralization system, which takes outside source water and refines it through “demineralization,” i.e., the removal of mineral ions. During the start-up operations for SONGS, Edison decided to construct a HFMUD to meet the make-up water needs of SONGS’ two active reactors. While the HFMUD was being constructed, Edison employed outside vendors, including Ecolochem, to provide the needed make-up water. Before hiring Ecolochem, Edison hired other vendors who provided poor quality water and constantly shuttled demineralization trucks on and off Edison’s property to meet Edison’s requirements. In the summer of 1982, Edison hired Ecolochem to provide purer quality water at the large volumes Edison needed to meet its make-up water needs. Ecolo-chem used a patented “Mobile Flow” trailer apparatus to provide water treatment services, which enabled it to regenerate its trailers on-site, thus avoiding the other vendors’ needs to truck the impure water off-site. Ecolochem, however, was hired only to produce demineralized water, not water that had been both demineralized and deoxygenated. The Electrical Power Research Institute (“EPRI”), a research organization for the power industry, published new guidelines in 1982, recommending the use of deoxy-genated water in PWRs. These guidelines were soon implemented throughout the utility industry. In direct response to these guidelines, Edison asked Ecolochem to deoxygenate the make-up water used in SONGS. Shortly thereafter, Ecolochem began developing the patented process at issue in the instant case. Once construction of the HFMUD was finished, Edison had no further need for Ecolochem’s services, being able to now produce, on its own, sufficient, high purity, deoxygenated make-up water by passing the water through the HFMUD. The HFMUD passes the make-up water through a strong acid cation resin bed, a predominantly weak base anion resin bed, an activated carbon bed, a second strong acid cation resin bed, a strong base anion bed, and, finally, a vacuum deareator. This process removes suspended, undissolved solids and dissolved impurities, including salt, mineral ions, organic chemicals, and oxygen. Ecolochem alleged that Edison’s process, as described above, infringes its" }, { "docid": "20015142", "title": "", "text": "Reduction of Oxygen in Feedwater” in Proceedings 41st International Water Conference, Engineering Society of Western Pennsylvania, 77-83 (1980) (Def. Ex. No. 45). The Martinola article states, “When applying activated carbon as a catalyst in the removal of oxygen with hydrazine at ambient temperatures it has to be taken into account that the carbon releases salts into the demineralized water.” Id. at 81. On the following page the authors diagram several applications including the following: Id. at 82. Mobile Water argues that this diagram refers back to the prior discussion of carbon catalyzed hydrazine deoxygenation. Thus, every aspect of the ’492 Patent would be anticipated because it includes the passage of the effluent from the carbon catalyst through a mixed bed resin to remove ionic impurities. The court concludes otherwise. The diagram found on page 82 of the Martinola article is under the bold-faced heading “Application of oxygen reduction in water with hydrogen.” Id. at 81 (em phasis supplied). Thus, the diagram refers to applications of the process the authors are trying to promote — the palladium/hydrogen catalysis — and not the hydrazine process which is discussed in a separate section. This conclusion is buttressed by the fact that the palladium/hydrogen process may also release ionic impurities into the effluent, see id. at 79 (“traces of chlorides or other ions may be released”), thus necessitating a downstream ion exchange resin when high purity deoxygenated water is required. Nothing in the Martinola reference expressly teaches the use of a mixed bed ion exchange resin following the hydrazine/carbon process. Accordingly, the court finds that the Martinola article is not anticipatory. See Akzo N.V. v. U.S. International Trade Commission, 808 F.2d 1471, 1479 (Fed.Cir.1986) (anticipation is a question of fact), cert. denied, — U.S. -, 107 S.Ct. 2490, 96 L.Ed.2d 382 (1987). 2. The Bechtel Publication. Mobile Water also argues that a tome put out by the Bechtel Group in 1982 anticipates the claims of the ’492 Patent. Bechtel Group, Inc., Guide to the Design of Secondary Systems and Their Components to Minimize Oxygen Induced Corrosion (1982) (Def. Ex. No. 4). Unremarkably, the Bechtel" }, { "docid": "20015143", "title": "", "text": "palladium/hydrogen catalysis — and not the hydrazine process which is discussed in a separate section. This conclusion is buttressed by the fact that the palladium/hydrogen process may also release ionic impurities into the effluent, see id. at 79 (“traces of chlorides or other ions may be released”), thus necessitating a downstream ion exchange resin when high purity deoxygenated water is required. Nothing in the Martinola reference expressly teaches the use of a mixed bed ion exchange resin following the hydrazine/carbon process. Accordingly, the court finds that the Martinola article is not anticipatory. See Akzo N.V. v. U.S. International Trade Commission, 808 F.2d 1471, 1479 (Fed.Cir.1986) (anticipation is a question of fact), cert. denied, — U.S. -, 107 S.Ct. 2490, 96 L.Ed.2d 382 (1987). 2. The Bechtel Publication. Mobile Water also argues that a tome put out by the Bechtel Group in 1982 anticipates the claims of the ’492 Patent. Bechtel Group, Inc., Guide to the Design of Secondary Systems and Their Components to Minimize Oxygen Induced Corrosion (1982) (Def. Ex. No. 4). Unremarkably, the Bechtel publication discloses the well-known process of catalyzing the oxygen-hydrazine reaction with activated carbon. Id. at 4-18 & 4-29. Thus, the inquiry is whether the publication teaches that mixed bed ion exchange should follow the carbon catalyzed reaction to remove ionic impurities leached from the activated carbon. The Bechtel publication does recommend testing if activated carbon is utilized as a catalyst because some contaminants may be released due to leaching. Id. at 4-30. No reference is made, however, to the nature of the contaminants or how they should be removed. The Bechtel publication does refer to the use of ion-exchange resins in the secondary system of the power generating plant. Id. at 4-24. The discussion at this point, however, is concerned with the effect such ion-exchanges would have on hydrazine levels in the system, and not the removal of contaminants released by the activated carbon. The court finds that the Bechtel publication does not anticipate the ’492 Patent. 3. The Russian Reference. The final writing Mobile Water alleges to be anticipatory is one authored by two" }, { "docid": "20015144", "title": "", "text": "publication discloses the well-known process of catalyzing the oxygen-hydrazine reaction with activated carbon. Id. at 4-18 & 4-29. Thus, the inquiry is whether the publication teaches that mixed bed ion exchange should follow the carbon catalyzed reaction to remove ionic impurities leached from the activated carbon. The Bechtel publication does recommend testing if activated carbon is utilized as a catalyst because some contaminants may be released due to leaching. Id. at 4-30. No reference is made, however, to the nature of the contaminants or how they should be removed. The Bechtel publication does refer to the use of ion-exchange resins in the secondary system of the power generating plant. Id. at 4-24. The discussion at this point, however, is concerned with the effect such ion-exchanges would have on hydrazine levels in the system, and not the removal of contaminants released by the activated carbon. The court finds that the Bechtel publication does not anticipate the ’492 Patent. 3. The Russian Reference. The final writing Mobile Water alleges to be anticipatory is one authored by two Russian scientists. Akol’zin & Kostrikira, Catalytic Oxidation of Hydrazine with Atmospheric Oxygen Dissolved in Water, UDC 546.-171.5 (Woolcott & Co., Patent Translation Services) (Def. Ex. No. 9). The Russian article recognized the use of activated carbon to catalyze the hydrazine-oxygen reaction. Id. at 10. The article also discussed the use of an ion exchanger following the activated carbon. Id. at 10-11. The court finds this reference not to anticipate the ’492 Patent for two reasons. First, the ion exchanger is referred to only as AV-17. Ecolochem’s expert testified that he believed that this referred to an anion exchange resin. Mobile Water’s expert was unable to give an opinion whether the AV-17 came within the scope of the ’492 Patent. It should be recalled that the '492 Patent called for a mixed bed resin consisting of both anion and cation exchange resins. Second, Akol’zin’s paper does not describe whether ionic contaminants are leached from the activated carbon. Thus, it is unclear why Akol’zin included the AV-17 ion exchange resin downstream from the activated carbon catalyst. The" }, { "docid": "15945587", "title": "", "text": "20, which claims a deoxygenation process comprising the steps of passing liquid containing oxygen and hydrazine through activated carbon, and then passing the liquid through ion exchange resins, including both strong acid cation and strong base anion exchange resins, to remove at least the dissolved contaminants. This is the exact process described by Dr. Martinola’s presentation of Figure 10. We therefore affirm the district court’s finding of anticipation of claim 20 of the ’411 patent as not clearly erroneous. II. Obviousness The district court also held that the inventions of claims 1, 3-13, 15, 17, 18, and 20 of the ’411 patent would have been obvious in light of the “combination of the Houghton process for deoxygenation with a mixed bed ion exchange resin to remove excess hydrazine and/or dissolved and/or undissolved carbon contaminants.” Id. at *37. We review the district court’s conclusion of obviousness de novo. We affirm the district court’s conclusion of obviousness with regard to claim 20, and reverse the holding that obviousness was proven by clear and convincing evidence with regard to all other claims at issue. A. The Houghton Process as a “Blueprint” The district court essentially found that the most innovative aspect of Ecolochem’s process was its “[ujnearthing [of] long-neglected art,” holding that “Ecolochem’s good fortune in obtaining the Houghton reference just as the EPRI guidelines created increased attention in the PWR industry to the problem of ambient temperature deoxygenation does not entitle Ecolochem to patent protection.” Id. at *33. Houghton was the co-author of a paper on deoxygenation by carbon catalysis of the reaction between hydrazine and dissolved oxygen, entitled “The Use of Active Carbon With Hydrazine in the Treatment of Boiler Feed Water” (“the Houghton article”). The Houghton article was presented at the 1957 International Water Conference at Bournemouth, England and brought to the attention of Ecolochem at the 1982 International Water Conference. The Houghton article peaked the interest of Ecolochem, and its scientists began performing experiments to determine if the results predicted in Houghton’s paper could be replicated in a laboratory setting. Ecolochem’s scientists were skeptical, because they “had understood that" } ]

[ { "docid": "2875418", "title": "", "text": "those in the prior litigation; a court of competent jurisdiction must have entered a valid, final judgment on the merits; and the present action must concern the same subject-matter or cause of action as the prior suit. Coggins v. Carpenter, 468 F.Supp. 270, 280 (E.D.Pa.1979). Finding that these conditions have been met, we grant defendants’ motions to dismiss. Plaintiff originally instituted suit against a plethora of Lancaster City and County public officials and private citizens and charged them with violations of The Civil Rights Act of 1871, 42 U.S.C. § 1983, 42 U.S.C. § 1985(2) and state claims based upon tortious conduct. Specifically, plaintiff’s first suit alleged that in his business as a rock collector he had employed, and then fired, defendant K. Burkey. In retaliation for his firing, K. Burkey allegedly conspired with co-defendants J. Burkey and Klivansky to secure a criminal prosecution of plaintiff. The three defendants then supposedly met and conspired with law enforcement officials who arrested plaintiff and charged him with corruption of a minor, and involuntary deviate sexual intercourse. Thereafter, defendant law enforcement officials subjected plaintiff to harassment, intimidation and abuse and, along with other defendants, maliciously prosecuted plaintiff for crimes which they knew he did not commit. To effectuate their illegal conspiratorial goal, various defendants committed perjury at plaintiff’s preliminary hearing and subsequent trial, sought to illegally pressure plaintiff into tendering a guilty plea, improperly investigated and interviewed potential jurors and threatened and intimidated defense witnesses. Upon completion of plaintiff’s trial, which ended in a hung jury, he was sentenced to prison — this for contemptuous conduct. While in the county prison, plaintiff was allegedly subjected to various abuses and forced to reveal information critical to and necessary for his defense at re-trial. The Commonwealth’s attempt to re-try plaintiff was successfully blocked by decision of the Pennsylvania Superior Court, grounded upon double jeopardy considerations. See Commonwealth v. Haefner, 264 Pa.Super. 144, 399 A.2d 707 (1979). We dismissed plaintiff’s first suit because it was time-barred. See Haefner v. County of Lancaster, 520 F.Supp. 131 (E.D.Pa.1981), aff’d, 681 F.2d 806 (3d Cir. 1982). Plaintiff’s current suit" } ]

[ { "docid": "19720222", "title": "", "text": "dismiss will be granted. The doctrine of res judicata is intended to ensure the finality of judgments and prevent repetitive litigation. Brown v. Felsen, 442 U.S. 127, 131, 99 S.Ct. 2205, 2209, 60 L.Ed.2d 767 (1979). The doctrine operates to bar not only identical repetitive suits but also to prevent the assertion of a different legal theory which arises from the same liability creating conduct, and which the party had reasonable opportunity to present in the original suit____ A party is not entitled to a second lawsuit merely because he states a new theory of recovery. Seamon v. Bell Telephone Co., 576 F.Supp. 1458, 1460 (W.D.Pa.1983), aff'd mem., 740 F.2d 958 (3d Cir.1984). See also Haefner v. County of Lancaster, 543 F.Supp. 264, 266-67 (E.D.Pa.1982), aff'd mem., 707 F.2d 1401 (3d Cir.1983); Miller v. United States, 438 F.Supp. 514, 520-23 (E.D.Pa.1977). Plaintiff argues that in Sendi I he sought damages only for commissions which he had allegedly earned prior to his November 6, 1981 termination date. Sendi II is not barred, he contends, because it is based on a claim that defendant breached an employment agreement by preventing plaintiff from working and earning commissions after November 6. In my view, the claims in Sendi I and II cannot be so neatly differentiated. Both cases center on the question whether Corn-ten had the right to accept Sendi’s resignation on November 6, 1981 and to deny his request to remain on the payroll for a period of time. The cases “emerge from the same transaction and share precisely the same nucleus of operative facts.” Poe v. John Deere Co., 695 F.2d 1103, 1106 (8th Cir.1982). Sendi II “is nothing more than an attempt to apply different legal labels to the facts” of Sendi I. Id. at 1107. See also Seamon, 576 F.Supp. at 1460. Moreover, although I denied plaintiff leave to amend his complaint in Sendi I, he did not confine himself to a claim for commissions allegedly earned before November 6, 1981. In opposing Comten’s motion for summary judgment, Sendi argued and presented evidence to show that Comten’s personnel policy manual" }, { "docid": "1179926", "title": "", "text": "a pattern and practice established among the County officials, instructed other County Department Heads “to take any action they could to prevent plaintiffs from building on the subject property, or otherwise attempted to induce plaintiffs to deed, transfer or otherwise convey forty (40) feet of the subject property for use as a potential thorough fare [sic] even though Lombard had no present use of the land.” The complaint alleges that these actions constituted a deprivation of property without due process and requests monetary damages. The complaint also includes two pendent state law counts alleging intentional infliction of mental distress. The district court, relying on this court’s decision in Hagee v. City of Evanston, 729 F.2d 510 (7th Cir.1984), granted summary judgment in favor of DuPage County and the individual defendants associated with the County (Van Vleck, Loveland, Branch, and Miller) on the grounds that the earlier mandamus suit barred the second suit by operation of res judicata. The court also granted summary judgment in favor of the Village of Lombard and Taylor based on collateral estoppel and dismissed the pendent state claim for want of jurisdiction. II. On appeal, the Wozniaks challenge the district court’s conclusion that their Section 1983 claim against DuPage County and its officials is barred under the doctrine of res judicata. Under this doctrine, parties or their privies are barred from litigating not only matters that were in fact raised and decided in an earlier suit involving the same parties, but also all other matters that could have been raised in the earlier suit. Smith v. City of Chicago, 820 F.2d 916, 917 (7th Cir.1987). Res judicata is designed to ensure the finality of judicial decisions because it “encourages reliance on judicial decisions, bars vexatious litigation, and frees the courts to resolve other disputes.” Brown v. Felsen, 442 U.S. 127, 131, 99 S.Ct. 2205, 2209, 60 L.Ed.2d 767 (1979). The Wozniaks seek to avoid the application of this time-honored rule of law to their claim against DuPage County and its officials primarily by arguing that under the Illinois law of res judicata, their state and federal" }, { "docid": "18841387", "title": "", "text": "Court has repeatedly emphasized the importance of protecting the independence of attorneys and ensuring zealous advocacy on behalf of clients under our adversary system of justice. See, e.g., In re Sawyer, 360 U.S. 622, 635-36, 79 S.Ct. 1376, 1382-1383, 3 L.Ed.2d 1473 (1959). See also In re Dellinger, 461 F.2d at 400. These principles must be followed with special care with respect to legal service organizations where, because of funding and other considerations, there is a high risk of interference and control by the government or the courts. Fairly read, plaintiff’s requests for relief, if granted, would seriously encroach upon the protected activities of the CLS defendants. It is also clear that plaintiff’s complaint fails to satisfy the requirement that defendants’ actions be motivated by a class-based, discriminatory animus. Such allegations must allege discrimination against a well defined class, and discrimination that “(1) affects a traditionally disadvantaged group {e.g., ‘suspect’ classification); (2) is irrational; or (3) unnecessarily burdens plaintiff’s exercise of a ‘fundamental’ right.” Santiago v. City of Philadelphia, 435 F.Supp. 136, 156 (E.D.Pa.1977). Plaintiff fails to satisfy any of these standards. Plaintiff does not allege discrimination based on race, sex, alienage, or any other suspect classification. Nor does she claim discrimination against administrative law judges as a class. Thus, she fails to state a claim under § 1985(3). B. 42 U.S.C. § 1985(2) The Third Circuit construes section 1985(2) as subdivided into two parts — one part preceding and the other following the semi-colon. Brawer v. Horowitz, 535 F.2d 830, 840 (3d Cir. 1976). The second half of section 1985(2), proscribing obstructions of justice having as their object the denial of equal protection of the laws, Haefner v. County of Lancaster, 520 F.Supp. 131, 134 (E.D.Pa.1981), has been construed to require the same class-based, invidiously discriminatory animus as that which has been re quired under § 1985(3). Brawer, 535 F.2d at 840. Accordingly, for the reasons stated above, plaintiff’s claim under this section must also be dismissed. The first clause of subsection (2) is aimed at conspiracies to intimidate or pressure witnesses, parties and jurors in the performance of" }, { "docid": "14095578", "title": "", "text": "The parties have reviewed the relevant legal principles of res judicata and collateral estoppel in their memoranda. The Court of Appeals for the Third Circuit has adhered to the view that state law rules of res judicata and collateral estoppel apply in diversity cases. See Provident Tradesmens Bank & Trust Co. v. Lumbermen’s Mutual Casualty Co., 411 F.2d 88, 94 (3d Cir.1969). Nevertheless, the majority rule is to the contrary, and calls for the application of federal law. See, e.g., Hunt v. Liberty Lobby, Inc., 707 F.2d 1493, 1496 (D.C.Cir.1983); Restatement (Second) of Judgments, § 87. The parties in the instant case have manifested a willingness to apply federal principles of res judicata and collateral estoppel. I will therefore evaluate defendant’s arguments by utilizing federal standards. As has been often stated, the three prong test for the application of res judicata to a given action requires (1) a final judgment in a court of competent jurisdiction in the earlier case; (2) the assertion of the same cause of action in the two cases at issue, and; (3) the presence of the same parties or their privies in both lawsuits. See Haefner v. The County of Lancaster, 543 F.Supp. 264, 265 (E.D.Pa.1982), affd, 707 F.2d 1401 (3d Cir.1983). In recent times, however, the last of these three requirements has been abolished in the strict sense. The Court of Appeals for the Third Circuit, among other courts, has broadened the availability of res judicata to persons who were not parties to or in “privity” with parties in the earlier case. See Bruszewski v. United States, 181 F.2d 419 (3d Cir.), cert. denied, 340 U.S. 865, 71 S.Ct. 87, 95 L.Ed. 632 (1950). That is, where the same plaintiff sues in multiple suits on identical causes of action, defendants in the later suits who were not named as defendants in the earlier suits are entitled to the benefit of res judicata so long as there is a close or particular relationship with the defendants in the earlier suit: Where different plaintiffs sue the same defendant in successive suits, many courts have questioned the" }, { "docid": "18413316", "title": "", "text": "a criminal prosecution against him on charges known to them as false. Additionally, defendants induced plaintiff to submit to a lie detector test, urged other individuals to persuade plaintiff to enter a plea of guilty, gathered background information on prospective jurors, threatened and intimidated various witnesses which plaintiff called in his defense, paid money to witnesses for favorable testimony, and isolated plaintiff in a prison cell known as the “hole”, allegedly designed to cause occupants severe emotional trauma. . 42 Pa.Cons.Stat.Ann. § 5524(1). . Singleton v. City of New York, 632 F.2d 185 (2d Cir. 1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347 (1981). . See, United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). Cf. Bayless v. Philadelphia National League Club, 579 F.2d 37 (3d Cir. 1978) (under Pennsylvania law the statute of limitations for personal injury actions begins to run when the plaintiff knows or reasonably should have known of the cause of the injury). See also Grabowski v. Turner & Newall, 516 F.Supp. 114 (E.D.Pa.1980), aff’d, 651 F.2d 908 (3d Cir. 1981) and Anthony v. Koppers Co.,-Pa.Super.-, 425 A.2d 428 (1981). . Pangrazzi v. United States, 511 F.Supp. 648 (E.D.Pa.1981). . Everett v. City of Chester, 391 F.Supp. 26 (E.D.Pa.1975). See also Davis v. Chubb/Pacific Indemnity Group, 493 F.Supp. 89 (E.D.Pa.1980), in which the court suggested several “indecisive” terminations which would not support a malicious prosecution claim: a charge withdrawn pursuant to an agreement with the accused or withdrawn out of mercy requested or accepted by the accused, the entry of a plea of nolo contendere or a pardon by the executive. The court held that a termination through an Accelerated Rehabilitative Disposition Program (ARD) was similarly “indecisive”. . Thomas v. E. J. Korvette, Inc., 329 F.Supp. 1163 (E.D.Pa.1971), rev’d on other grounds, 476 F.2d 471 (3d Cir. 1973). . Singleton v. City of New York, supra. . See Commonwealth v. Haefner, 264 Pa.Super. 144, 399 A.2d 707 (1979). . Formal abandonment of charges by the prosecutor as the necessary consequence of a procedural error committed by the" }, { "docid": "18841388", "title": "", "text": "fails to satisfy any of these standards. Plaintiff does not allege discrimination based on race, sex, alienage, or any other suspect classification. Nor does she claim discrimination against administrative law judges as a class. Thus, she fails to state a claim under § 1985(3). B. 42 U.S.C. § 1985(2) The Third Circuit construes section 1985(2) as subdivided into two parts — one part preceding and the other following the semi-colon. Brawer v. Horowitz, 535 F.2d 830, 840 (3d Cir. 1976). The second half of section 1985(2), proscribing obstructions of justice having as their object the denial of equal protection of the laws, Haefner v. County of Lancaster, 520 F.Supp. 131, 134 (E.D.Pa.1981), has been construed to require the same class-based, invidiously discriminatory animus as that which has been re quired under § 1985(3). Brawer, 535 F.2d at 840. Accordingly, for the reasons stated above, plaintiff’s claim under this section must also be dismissed. The first clause of subsection (2) is aimed at conspiracies to intimidate or pressure witnesses, parties and jurors in the performance of their duties in any court of the United States. Brawer, 535 F.2d at 840. This section does not provide judges or others involved in the judicial process, who are not specified in the statute, with any protection. Plaintiff, as a judge, does not have standing under this statute to raise the constitutional claims of litigants who appear before her. O’Malley v. Brierley, 477 F.2d at 789 (one cannot sue for deprivation of another’s civil rights.) C. Section 1985(1) Section 1985(1) has not been definitively construed by the Third Circuit. However, in a carefully considered opinion, with which I am in agreement, the Seventh Circuit has construed it to consist of four component parts. Stern v. United States Gypsum, Inc., 547 F.2d 1329, 1336 (7th Cir.), cert. denied, 434 U.S. 975, 98 S.Ct. 533, 54 L.Ed.2d 467 (1977). Parts one and two proscribe conspiracies to prevent federal officers, by the use of “force, intimidation, or threat” from holding office or discharging their duties. Also proscribed are conspiracies to induce federal officers to leave a place where" }, { "docid": "7960184", "title": "", "text": "all defendants. F. Under Pennsylvania law, the elements of the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct, (2) which is intentional or reckless, and (3) causes severe emotional distress. Denenberg v. American Family Corp. of Columbus, Ga., 566 F.Supp. 1242, 1251 (E.D.Pa.1983). Plaintiffs complaint sufficiently states this cause of action against all defendants. G. Civil conspiracy is actionable, under Pennsylvania law, when (1) an overt act is performed (2) in pursuit of the common purpose or design held by the conspirators, and (3) actual legal damage results. Cohen v. Pelagatti, 364 Pa.Super. 573, 528 A.2d 657, 658 (1987). As discussed, supra, in section A., the plaintiff has failed to allege facts tending to establish that a conspiracy existed between the private-party defendants and Justice. Therefore, the complaint does not state a cause of action for civil conspiracy against Justice. The complaint is sufficient, however, in stating a civil conspiracy claim against the private-party defendants. H. Defendants also contend that plaintiffs claims are barred by the applicable statutes of limitations. The limitations period applicable to all of plaintiffs common law claims is two years. 42 Pa.C.S. § 5524. Since Congress did not establish a federal statute of limitations for actions brought under 42 U.S.C. § 1983, the two-year state limitations period for the analogous common law actions is utilized. Haefner v. Lancaster County, Pa., 520 F.Supp. 131, 132 (E.D.Pa.1981), affirmed, 681 F.2d 806 (3d Cir.1982), cert. denied, 459 U.S. 874, 103 S.Ct. 165, 74 L.Ed.2d 136 (1982). Plaintiffs original complaint in the superseded action No. 90-6458 (“the 1990 complaint”) brought identical claims against the defendants in the present action. The 1990 complaint satisfied the statute of limitations requirement as to all claims. Pursuant to the Order of this court dated May 1, 1991, plaintiff was instructed to file the complaint in the present action so that two related actions (89-6581 and 90-6458) could be consolidated. The complaint in the present action satisfies the limitations requirements through its relationship to and derivation from the 1990 complaint. I. Defendants also argue that plaintiffs complaint fails to satisfy" }, { "docid": "20354446", "title": "", "text": "OPINION DITTER, District Judge. Alleging that he was unlawfully arrested and prosecuted, plaintiff instituted this civil rights action for damages against two individuals and two corporations. Before the court are motions on behalf of all four defendants, pursuant to Rule 12(b)(1) and (6), to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. I conclude that the complaint must be dismissed with respect to the corporate defendants but not with regard to the individuals. Taking as true the allegations of the complaint and all reasonable inferences deducible therefrom, as I must on a motion to dismiss, see Curtis v. Everette, 489 F.2d 516, 518 (3d Cir. 1973), cert. denied sub nom. Smith v. Curtis, 416 U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774 (1974), the facts giving rise to this action may be summarized as follows. At approximately 5:30 on the afternoon of January 12, 1974, plaintiff Gary Padover was on the premises of a department store owned and operated by defendant Gimbel Brothers, Inc., located in a shopping center owned by defendant Park City Associates in Lancaster, Pennsylvania. Defendant David Thompson, a police officer for Manheim Township, Lancaster County, Pennsylvania, and an employee of Gimbel Brothers, and defendant James Martin, an employee of Park City Associates, arrested plaintiff, prevented his leaving the store, and committed an assault and battery upon him. Thereafter on January 31, 1974, Thompson filed a criminal complaint against plaintiff, charging him with disorderly conduct. At his trial before a Lancaster County district justice, plaintiff was acquitted and discharged from arrest and further prosecution. Invoking the Civil Rights Act of 1871 (42 U.S.C. § 1988) and 42 U.S.C. § 1985, and their jurisdictional counterparts, 28 U.S.C. §§ 1331 and 1343, plaintiff thereafter instituted this action. Specifically, plaintiff alleges that defendants’ actions, under color of state law, violated his constitutional rights: (1) of personal security and freedom from arrest except upon probable cause guaranteed by the Fourth Amendment; (2) of due process of law under the Fifth and Fourteenth Amendments; (3) to be informed" }, { "docid": "15578927", "title": "", "text": "County, 520 F.Supp. 131, 132 (E.D.Pa.1981), aff'd, 681 F.2d 806 (3d Cir.1982). Reasoning that Pennsylvania’s six-month period within which to commence suit against “any offi- eer or any government unit for anything done in the execution of his office”, 42 Pa.C.S.A. § 5522(b)(1), supplies the appropriate statute of limitations, defendants argue that plaintiffs’ action, brought beyond this temporal limit, is barred. In so urging, defendants assert that Pennsylvania has jettisoned the traditional § 1983 statute-of-limitations analysis and has substituted a specific limitation period which bars all suits against the Commonwealth, its political subdivisions and officers which are beyond the six-month period. This argument, although appearing meritorious cannot withstand principled scrutiny. Claims of unlawful arrest and physical abuse while in police custody are viewed as most nearly resembling state tort actions for assault and battery and false arrest and imprisonment. Haefner v. Lancaster County, 520 F.Supp. at 132. Institution of suit for such claims must be within two years of accrual. 42 Pa.C.S.A. § 5524(1). Adoption of the six-month statute for claims against the Commonwealth and its agencies by the Pennsylvania legislature did not alter this rule. Rather, the new six-month statute of limitations establishes a time frame within which to bring specified claims against a specific class of defendant. The key issue for resolution is whether the claim at bar is the type of “specified claim” which is intended to be governed by the short limitation period. Judge Luongo (now Chief Judge), in a careful and in-depth analysis of the statute in question, 42 Pa.C.S.A. § 5522(b)(1), established a two-step analysis to determine those civil rights claims which are properly subjected to the six-month period. He viewed the statute as complementing, rather than supplanting, the traditional analysis which courts employ in determining which statute of limitations to apply. Specifically, courts first identify the facts underlying the complained-of state action. If the state has provided a statute of limitations for the specific conduct at issue, then that specific limitation period applies. Where, however, the state activity which forms the basis of the § 1983 claim does not admit to any specific" }, { "docid": "1704834", "title": "", "text": "state court’s judgment must be given the same effect in federal court that it would have been given in state court. Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985); Kremer v. Chemical Construction Co., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982); Nanavati v. Burdette Tomlin Memorial Hospital, 857 F.2d 96 (3d Cir.1988), cert. denied, — U.S. —, 109 S.Ct. 1528, 103 L.Ed.2d 834 (1989). The Pennsylvania law of res judica-ta applies a four-part test to determine whether a claim is barred: The application of res judicata requires a concurrence of four (4) conditions: (1) an identity of the thing sued upon; (2) an identity of the cause of action; (3) an identity of the persons and parties to the action; and (4) an identity of the quality or capacity of the parties suing or sued. Dunham v. Temple University, 288 Pa.Super. 522, 534, 432 A.2d 993, 999 (1981). For relitigation to be precluded, Pennsylvania law requires that the prior determination be “on the merits.” See Ross v. Bowlby, 353 Pa.Super. 59, 509 A.2d 332 (1986) (disposition of case not on the merits does not bar relitigation); Consolidation Coal Co. v. Dish 5, UMW, 336 Pa.Super. 354, 485 A.2d 1118 (1984) (res judicata applies where prior action was decided on the merits). Where the prior dismissal was based on a judgment of non pros, Pennsylvania courts will not give preclusive effect to the judgment. As the Pennsylvania Superior Court has stated: [t]he legal effect of the entry of a judgment of non pros is not such as to preclude a plaintiff who suffers such a judgment from instituting another suit on the same cause of action provided, however, that the second suit is brought within the period of the statute of limitations [and the plaintiff is willing to pay for costs of the former suit]. Haefner v. Sprague, 343 Pa.Super. 342, 347, 494 A.2d 1115, 1118 (1985). Although neither the Superior Court nor the Supreme Court of Pennsylvania have spoken to the issue, Pennsylvania claim preclusion law also appears" }, { "docid": "7960185", "title": "", "text": "The limitations period applicable to all of plaintiffs common law claims is two years. 42 Pa.C.S. § 5524. Since Congress did not establish a federal statute of limitations for actions brought under 42 U.S.C. § 1983, the two-year state limitations period for the analogous common law actions is utilized. Haefner v. Lancaster County, Pa., 520 F.Supp. 131, 132 (E.D.Pa.1981), affirmed, 681 F.2d 806 (3d Cir.1982), cert. denied, 459 U.S. 874, 103 S.Ct. 165, 74 L.Ed.2d 136 (1982). Plaintiffs original complaint in the superseded action No. 90-6458 (“the 1990 complaint”) brought identical claims against the defendants in the present action. The 1990 complaint satisfied the statute of limitations requirement as to all claims. Pursuant to the Order of this court dated May 1, 1991, plaintiff was instructed to file the complaint in the present action so that two related actions (89-6581 and 90-6458) could be consolidated. The complaint in the present action satisfies the limitations requirements through its relationship to and derivation from the 1990 complaint. I. Defendants also argue that plaintiffs complaint fails to satisfy the requirements of Federal Rules of Civil Procedure 8, 9 and 10. Rule 8 requires a pleader to set forth (1) a short, plain statement asserting jurisdictional grounds, (2) a short, plain statement of each claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief pleader is seeking. Fed.R.Civ.P. 8(a). Plaintiffs complaint clearly includes each of these three items. Rule 9 provides that in “all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” Fed.R.Civ.P. 9(b). Despite the fact that neither fraud nor mistake is averred in the complaint, defendants contend that this rule should be applicable to plaintiffs allegations. The contention is unpersuasive. Rule 10 requires, inter alia, that each claim founded on a separate transaction or occurrence be stated in a separate count when such arrangement facilitates under standing. Fed.R.Civ.P. 10(b). Plaintiffs complaint is straightforward and understandable. Defendants are unconvincing in their assertion that organization of the complaint into separate counts would enhance clarity of presentation. V. Conclusion" }, { "docid": "23669907", "title": "", "text": "was affected by such act or transaction. In Count V of the complaint, Mr. duPont has alleged that: From time to time defendants Sam Wyly, Charles J. Wyly, Jr., Walter Haefner and Walter Haefner Holding A.G., by the use of the mails and means and instrumentalities of interstate commerce, and otherwise, willfully effected a series of transactions in the common stock of UCC raising the price of such security for the purpose of inducing the purchase or sale of such security by others, and for the purpose of pegging, fixing or stabilizing the price of such shares in contravention of the rules and regulations of the SEC. Mr. duPont does not allege that he has purchased shares the price of which has been affected by such transaction. In fact, in his brief plaintiff admits that “(he) did not purchase or sell his stock at a price directly affected by the Section 9(a) manipulations.” I read this comment, in the absence of any express allegation on the subject, as indicating that the series of stock transactions referred to in paragraph 45 did not precede the purchase of Mr. duPont’s stock on May 19, 1971. In light of the express requirement of Section 9(e) that liability be predicated on a purchase or sale at a price affected by the allegedly offending conduct, I conclude that plaintiff has not stated a claim upon which relief could be granted under Section 9. Rosenberg v. Hano, 121 F.2d 818 (3rd Cir. 1941). Plaintiff argues that even though he himself has suffered no injury, members of the class which he seeks to represent have been damaged and he ought to be permitted to litigate those claims. Even if I were persuaded that this were otherwise a proper class action, I think it settled that one who has suffered no wrong is not properly a member of a class seeking redress and, therefore, not an appropriate party to represent it. See Kauffman v. Dreyfus, 434 F.2d 727 (3rd Cir. 1970) and cases cited at 434 F.2d 736. Count V will be dismissed. Defendant Arthur Young’s Motion To" }, { "docid": "15578926", "title": "", "text": "MEMORANDUM AND ORDER TROUTMAN, District Judge. Plaintiffs, complaining that their illegal arrests were accomplished through the use of excessive force, instituted this action against a plethora of Pennsylvania State officials and local police officers. Defendants, moving to dismiss all claims grounded in The Civil Rights Act of 1871, 42 U.S.C. § 1983 , argue that the purportedly relevant statute of limitations, 42 Pa.C.S.A. § 5522(b)(1), requires that all such actions be brought within six months. Since more than that period of time elapsed between the accrual of plaintiffs’ claim and the institution of suit, defendants assert that they are entitled to dismissal or summary judgment. We disagree and deny the motion. Because § 1983 contains no statute of limitations, federal courts have historically applied the limitations period which would be applicable in the state court for an action seeking similar relief under state law. Board of Regents v. Tomanio, 446 U.S. 478, 483-89, 100 S.Ct. 1790, 1794, 64 L.Ed.2d 440 (1980); Polite v. Diehl, 507 F.2d 119, 122 (3d Cir.1974) (en banc); Haefner v. Lancaster County, 520 F.Supp. 131, 132 (E.D.Pa.1981), aff'd, 681 F.2d 806 (3d Cir.1982). Reasoning that Pennsylvania’s six-month period within which to commence suit against “any offi- eer or any government unit for anything done in the execution of his office”, 42 Pa.C.S.A. § 5522(b)(1), supplies the appropriate statute of limitations, defendants argue that plaintiffs’ action, brought beyond this temporal limit, is barred. In so urging, defendants assert that Pennsylvania has jettisoned the traditional § 1983 statute-of-limitations analysis and has substituted a specific limitation period which bars all suits against the Commonwealth, its political subdivisions and officers which are beyond the six-month period. This argument, although appearing meritorious cannot withstand principled scrutiny. Claims of unlawful arrest and physical abuse while in police custody are viewed as most nearly resembling state tort actions for assault and battery and false arrest and imprisonment. Haefner v. Lancaster County, 520 F.Supp. at 132. Institution of suit for such claims must be within two years of accrual. 42 Pa.C.S.A. § 5524(1). Adoption of the six-month statute for claims against the Commonwealth and" }, { "docid": "19720221", "title": "", "text": "OPINION LUONGO, Chief Judge. This is uie second of two lawsuits based on plaintiff Joseph Sendi’s claim that defendant NCR Comten, Inc. wrongfully terminated his employment. In 1984 Sendi filed a complaint alleging that Comten’s acceptance of his resignation on November 6, 1981 violated the Pennsylvania Wage Payment and Collection Law (WPCL), 43 P.S. § 260.1 et seq. Sendi v. NCR Comten, Inc., No. 84-2114 (E.D.Pa. filed May 2, 1984) (Sendi I). On June 10, 1985 Sendi moved for leave to amend his complaint to add counts alleging breach of an employment agreement and an implied covenant of good faith and fair dealing. I denied his motion for leave to amend on July 5 and, on October 25, granted summary judgment in Comten’s favor, 619 F.Supp. 1577. On October 10, 1985 plaintiff filed this lawsuit (Sendi II). Comten has moved to dismiss the Sendi II complaint, which is identical to the proposed amended complaint in Sendi I, on the ground that it is barred by res judicata. For the reasons stated below, Comten’s motion to dismiss will be granted. The doctrine of res judicata is intended to ensure the finality of judgments and prevent repetitive litigation. Brown v. Felsen, 442 U.S. 127, 131, 99 S.Ct. 2205, 2209, 60 L.Ed.2d 767 (1979). The doctrine operates to bar not only identical repetitive suits but also to prevent the assertion of a different legal theory which arises from the same liability creating conduct, and which the party had reasonable opportunity to present in the original suit____ A party is not entitled to a second lawsuit merely because he states a new theory of recovery. Seamon v. Bell Telephone Co., 576 F.Supp. 1458, 1460 (W.D.Pa.1983), aff'd mem., 740 F.2d 958 (3d Cir.1984). See also Haefner v. County of Lancaster, 543 F.Supp. 264, 266-67 (E.D.Pa.1982), aff'd mem., 707 F.2d 1401 (3d Cir.1983); Miller v. United States, 438 F.Supp. 514, 520-23 (E.D.Pa.1977). Plaintiff argues that in Sendi I he sought damages only for commissions which he had allegedly earned prior to his November 6, 1981 termination date. Sendi II is not barred, he contends, because it" }, { "docid": "18838917", "title": "", "text": "Co. v. Food Machinery & Chemical Corp., 382 U.S. 172, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965); Frederiksen v. Poloway, 637 F.2d 1147, 1150 n. 1 (7th Cir.), cert. denied, 451 U.S. 1017, 101 S.Ct. 3006, 69 L.Ed.2d 389 (1981); General Public Utilities Corp. v. United States, 551 F.Supp. 521, 524 n. 4 (E.D.Pa.1982). Plaintiffs’ six-count complaint primarily asserts claims under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and the Fourth, Eighth and Fourteenth Amendments. Additionally, plaintiffs have appended various state tort claims to their federal ones. Defendants, moving to dismiss, assert that the applicable statute of limitations precludes any adjudication of the complaint, that plaintiffs have failed to state a claim under § 1983, that Count II improperly purports to predicate municipal liability upon the theory of respondeat superior and that the Political Subdivision Tort Claims Act, 42 Pa.C.S.A. § 8541 et seq., effectively immunizes them from suit. Finally, defendants argue that they may not be subjected to a claim for punitive damages. We now address these issues. Plaintiffs’ claims against defendants accrued on October 4,1979. Suit was instituted two years and one day later, on October 5,1981. The operative facts underlying the federal claim are analogous to the state tort of false arrest and imprisonment and assault and battery. Pennsylvania requires that such claims be brought within two years. Salaneck v. State Trooper Eric Olena, 558 F.Supp. 370 (E.D.Pa.1983); Haefner v. Lancaster County, 520 F.Supp. 131, 132 (E.D.Pa.1981), aff'd, 681 F.2d 806 (3d Cir.1982); 42 Pa.C.S.A. § 5524(1). Fed.R. Civ.P. 6(a), which governs the resolution of this issue, specifically provides that “day of the act ... from which the designated period of time begins to run shall not be included” in determining whether suit was brought in a timely manner. Accordingly, October 5, 1979, the day after the complained of conduct occurred, is the first day which we consider in determining whether suit was filed within the prescribed time. Since suit was instituted on October 5,1981, we conclude that this action was brought within the two-year period and is not time-barred. The individual defendants also" }, { "docid": "14095579", "title": "", "text": "and; (3) the presence of the same parties or their privies in both lawsuits. See Haefner v. The County of Lancaster, 543 F.Supp. 264, 265 (E.D.Pa.1982), affd, 707 F.2d 1401 (3d Cir.1983). In recent times, however, the last of these three requirements has been abolished in the strict sense. The Court of Appeals for the Third Circuit, among other courts, has broadened the availability of res judicata to persons who were not parties to or in “privity” with parties in the earlier case. See Bruszewski v. United States, 181 F.2d 419 (3d Cir.), cert. denied, 340 U.S. 865, 71 S.Ct. 87, 95 L.Ed. 632 (1950). That is, where the same plaintiff sues in multiple suits on identical causes of action, defendants in the later suits who were not named as defendants in the earlier suits are entitled to the benefit of res judicata so long as there is a close or particular relationship with the defendants in the earlier suit: Where different plaintiffs sue the same defendant in successive suits, many courts have questioned the fairness of invoking res judicata against the defendant unless a significant relationship can be found between the plaintiffs. But where, as in this case, res judicata is invoked against a plaintiff who has twice asserted essentially the same claim against different defendants, courts have, as indicated in the cases above cited, enlarged the area of res judicata beyond any definable categories of privity between the defendants____ We are in accord with this development of the law away from formalism which impedes the achievement of fair and desirable results. Bruszewski, 181 F.2d at 422. The Court of Appeals later reaffirmed Bruszewski, holding in Gambocz v. Yelencsics, 468 F.2d 837, 841 (3d Cir.1972) that res judicata applies “where there is a close or significant relationship between successive defendants.” The doctrine of collateral estoppel, sometimes called “issue preclusion,” serves essentially the same policy goals as res judicata — avoiding relitigation of the same claims, expense to litigants and inconsistent results. The rules of res judicata and collateral estoppel are often confused. The Court of Appeals for the Third" }, { "docid": "18838918", "title": "", "text": "defendants accrued on October 4,1979. Suit was instituted two years and one day later, on October 5,1981. The operative facts underlying the federal claim are analogous to the state tort of false arrest and imprisonment and assault and battery. Pennsylvania requires that such claims be brought within two years. Salaneck v. State Trooper Eric Olena, 558 F.Supp. 370 (E.D.Pa.1983); Haefner v. Lancaster County, 520 F.Supp. 131, 132 (E.D.Pa.1981), aff'd, 681 F.2d 806 (3d Cir.1982); 42 Pa.C.S.A. § 5524(1). Fed.R. Civ.P. 6(a), which governs the resolution of this issue, specifically provides that “day of the act ... from which the designated period of time begins to run shall not be included” in determining whether suit was brought in a timely manner. Accordingly, October 5, 1979, the day after the complained of conduct occurred, is the first day which we consider in determining whether suit was filed within the prescribed time. Since suit was instituted on October 5,1981, we conclude that this action was brought within the two-year period and is not time-barred. The individual defendants also argue that plaintiffs have failed to state a claim under § 1983 because when plaintiffs were arrested they, defendants, had probable cause and that the arguable use of some force to effectuate the valid arrests was privileged and not excessive. Hence, the individual defendants argue that Count I should be dismissed. We begin our analysis of this issue with the observation that state actors who make an arrest incur no § 1983 liability when they act in good faith and with probable cause, Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967) or pursuant to a valid arrest warrant. Baker v. McCollan, 443 U.S. 137, 143-44, 99 S.Ct. 2689, 2694, 61 L.Ed.2d 433 (1979); Druckenmiller v. United States, 548 F.Supp. 193, 194 (E.D.Pa.1982). In specifically addressing this issue, Chief Justice Warren observed that a policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does." }, { "docid": "18413317", "title": "", "text": "114 (E.D.Pa.1980), aff’d, 651 F.2d 908 (3d Cir. 1981) and Anthony v. Koppers Co.,-Pa.Super.-, 425 A.2d 428 (1981). . Pangrazzi v. United States, 511 F.Supp. 648 (E.D.Pa.1981). . Everett v. City of Chester, 391 F.Supp. 26 (E.D.Pa.1975). See also Davis v. Chubb/Pacific Indemnity Group, 493 F.Supp. 89 (E.D.Pa.1980), in which the court suggested several “indecisive” terminations which would not support a malicious prosecution claim: a charge withdrawn pursuant to an agreement with the accused or withdrawn out of mercy requested or accepted by the accused, the entry of a plea of nolo contendere or a pardon by the executive. The court held that a termination through an Accelerated Rehabilitative Disposition Program (ARD) was similarly “indecisive”. . Thomas v. E. J. Korvette, Inc., 329 F.Supp. 1163 (E.D.Pa.1971), rev’d on other grounds, 476 F.2d 471 (3d Cir. 1973). . Singleton v. City of New York, supra. . See Commonwealth v. Haefner, 264 Pa.Super. 144, 399 A.2d 707 (1979). . Formal abandonment of charges by the prosecutor as the necessary consequence of a procedural error committed by the trial judge and barring re-prosecution because of the Double Jeopardy Clause cannot be considered as termination inconsistent with guilt. . This subsection provides that [i]f two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been sudh juror; or if two or more persons conspired for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any" }, { "docid": "2875417", "title": "", "text": "MEMORANDUM AND ORDER TROUTMAN, District Judge. Res judicata rests upon considerations of “economy of judicial time and public policy favoring the establishment of legal relations”. Sea-Land Services v. Gaudet, 414 U.S. 573, 578, 94 S.Ct. 806, 811, 39 L.Ed.2d 9 (1974), quoting Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948). Described as a “fundamental rule of substantial justice” rather than a “mere matter of practice or procedure inherited from more technical times” it should be “cordially regarded and enforced by the courts”. Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 401, 101 S.Ct. 2424, 2429, 69 L.Ed.2d 103, 111 (1981) (quotations omitted). Res judicata serves the salutary purposes of “encouragpng] reliance on judicial decisions [and], bar [ring] vexatious litigation [while] free[ing] courts to resolve other disputes”. Brown v. Felsen, 442 U.S. 127, 131, 99 S.Ct. 2205, 2209, 60 L.Ed.2d 767 (1979). In order to successfully invoke its protections, three prerequisites need be established: the parties to the instant suit must be the same or in privity with those in the prior litigation; a court of competent jurisdiction must have entered a valid, final judgment on the merits; and the present action must concern the same subject-matter or cause of action as the prior suit. Coggins v. Carpenter, 468 F.Supp. 270, 280 (E.D.Pa.1979). Finding that these conditions have been met, we grant defendants’ motions to dismiss. Plaintiff originally instituted suit against a plethora of Lancaster City and County public officials and private citizens and charged them with violations of The Civil Rights Act of 1871, 42 U.S.C. § 1983, 42 U.S.C. § 1985(2) and state claims based upon tortious conduct. Specifically, plaintiff’s first suit alleged that in his business as a rock collector he had employed, and then fired, defendant K. Burkey. In retaliation for his firing, K. Burkey allegedly conspired with co-defendants J. Burkey and Klivansky to secure a criminal prosecution of plaintiff. The three defendants then supposedly met and conspired with law enforcement officials who arrested plaintiff and charged him with corruption of a minor, and involuntary deviate sexual intercourse. Thereafter," }, { "docid": "2875420", "title": "", "text": "is predicated upon the same general events outlined above; they commenced in August, 1975. Additional allegations are contained in the instant suit, which, plaintiff urges, assert a new dimension to the prior suit and obstruct or exclude application of res judicata. Specifically, plaintiff now informs the Court that he was subjected to multiple prosecutions. The first lawsuit was predicated upon false charges inspired by defendant K. Burkey. The case at bar, plaintiff asserts, is grounded in false charges inspired by defendant Klivansky. Unlike the “Burkey-inspired” charges, the “Klivansky-inspired” charges were not the subject of the mistrial which eventually resulted in litigation before the Pennsylvania Superior Court. Moreover, plaintiff now argues that the “Klivansky-inspired” charges were outstanding until March 7, 1980, at which time they were nolle prossed on the basis of insufficient evidence. The unlawful conspiracy now alleged and relating to the “Klivansky-inspired” charges includes defendants’ supposed failure to comply with a Court order requiring them to expunge plaintiff’s arrest record. See Commonwealth v. Haefner, 291 Pa.Super. 604, 436 A.2d 665 (1981). We turn now to our analysis of the issue involved. The first element necessary to establishment of a res judicata bar, the requirement that the subsequent action be brought against the same parties as the initial action, is met here. The presence of defendant Mumma, the only defendant not named in the first suit, does not compel a contrary result. Coggins v. Carpenter, 468 F.Supp. at 280. We have equally little trouble finding that the second required element, a final, valid judgment on the merits, is met. A dismissal for failure to state a claim is a “judgment on the merits”. Federated Department Stores, Inc. v. Moitie, 452 U.S. at 399, 101 S.Ct. at 2428, n. 3, 69 L.Ed.2d at 109, n. 3; Hubicki v. ACF Industries, Inc., 484 F.2d 519, 523 (3d Cir. 1973); Hayes v. New England Millwork Distributors, Inc., 485 F.Supp. 459, 461 (D.Mass.1980); Coggins v. Carpenter, 468 F.Supp. at 280. Likewise, dismissal of a suit as time-barred establishes a res judicata bar. Wachovia Bank & Trust Co., N.A. v. Randell, 485 F.Supp. 39 (S.D.N.Y.1979)." } ]

[ { "docid": "2928931", "title": "", "text": "“is inferred, as a fact, from conduct of the parties showing ... their tacit understanding.” Trauma Serv. Grp., 104 F.3d at 1326 (internal quotation marks omitted); cf. Anderson, 344 F.3d at 1353 (requiring mutuality of intent to contract). “In short, an implied-in-fact contract arises when an express offer and acceptance are missing but the parties’ conduct indicates mutual assent.” City of Cincinnati v. United States, 153 F.3d 1375, 1377 (Fed.Cir.1998). As with an express contract, an implied-in-fact contract with the United States requires a government agent with actual authority to contract. Id. at 1377; Trauma Serv. Grp., 104 F.3d at 1326. The “risk of having accurately ascertained that he who purports to act for the government does in fact act within the bounds of his authority” is assumed by the private contracting party. Schism v. United States, 316 F.3d 1259, 1278 (Fed.Cir.2002) (citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384, 68 S.Ct. 1, 92 L.Ed. 10 (1947)). An implied-in-law contract, on the other hand, imputes a promise to perform a legal duty by fiction of law when no intent to contract is shown. Algonac Mfg. Co. v. United States, 192 Ct.Cl. 649, 674, 428 F.2d 1241, 1255 (1970) (citing Balt. & Ohio R.R. v. United States, 261 U.S. 592, 597, 43 S.Ct. 425, 67 L.Ed. 816 (1923) and 17 C.J.S. Contracts §4 (1963)). The Court of Federal Claims has jurisdiction over claims involving implied-in-fact contracts but lacks jurisdiction over claims based on contracts implied in law. Id. at 1256. Regarding the issue of whether an implied contract and express contract can coexist, “[i]t is well settled that the existence of an express contract precludes the existence of an implied-in-fact contract dealing with the same subject matter, unless the implied contract is entirely unrelated to the express contract.” Schism, 316 F.3d at 1278; see Trauma Serv. Grp., 104 F.3d at 1326. Here, the facts cited by plaintiff in support of its implied contract argument do not support such an argument because they are too closely related to the subject matter of the express contracts. Cf. Schism, 316 F.3d" } ]

[ { "docid": "19343686", "title": "", "text": "S.A. de C.V. v. United States, 39 Fed.Cl. 171, 177 (1997). In addition to these standard requirements, the government cannot be bound to a contract except by a government agent with actual authority to bind the United States. See Trauma Serv. Group v. United States, 104 F.3d 1321, 1325 (Fed.Cir.1997). Because of this final element of a government contract, “[a]nyone entering into an agreement with the Government takes the risk of accurately ascertaining the authority of the agents who purport to act for the Government, and this risk remains with the contractor even when the Government agents themselves may have been unaware of the limitations on their authority.” Id. Suit may be brought in this court based either on an express or an implied-in-faet contract. Hercules, Inc. v. United States, 516 U.S. 417, 423, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996). An implied contract is much the same as an express contract; both require a meeting of the minds and a showing of mutual intent to be bound. See Balt. & Ohio R. Co. v. United States, 261 U.S. 592, 597, 58 Ct.Cl. 709, 43 S.Ct. 425, 67 L.Ed. 816 (1923); Russell Corp. v. United States, 210 Ct.Cl. 596, 537 F.2d 474, 482 (1976). With an implied contract, however, the nature of the evidence showing this intent will differ. Under an implied contract, courts will infer a meeting of the minds from the conduct of the parties, rather than from their express words. See Balt. & Ohio, 261 U.S. at 597, 43 S.Ct. 425 (“[A]n agreement ‘implied in fact,’ founded upon a meeting of minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding”). Courts have frequently held that “in negotiations where the parties contemplate that their contractual relationship would arise by means of a written agreement, no contract can be implied.” Pac. Gas & Elec. Co. v. United States, 3 Cl.Ct. 329, 339 (1983). See also Essen Mall Props. v. United States, 21 Cl.Ct. 430, 439-440 (1990); City of" }, { "docid": "7560671", "title": "", "text": "the government’s arguments are unpersuasive and that the factual allegations in Hurtado’s complaint regarding the existence of a valid contract are sufficient “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. B. The Complaint Contains Sufficient Factual Allegations to Support a Claim for Breach of Contract. 1. Hurtado has pled sufficient facts to permit a reasonable inference that government officials promised to provide her with protection and judicial assistance in exchange for her services as a confidential informant. A contract with the United States may be either express or implied-in-fact. An implied-in-fact contract is one “founded upon a meeting of the minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding.” Baltimore & Ohio R.R. Co. v. United States, 261 U.S. 592, 597, 43 S.Ct. 425, 67 L.Ed. 816 (1923); see also Hercules, Inc. v. United States, 516 U.S. 417, 424, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996). To establish the existence of a valid contract with the United States, whether express or implied-in-fact, a plaintiff must show (1) mutuality of intent; (2) consideration; (3) lack of ambiguity in the offer and acceptance; and (4) actual authority to bind the government in contract on the part of the government official whose conduct is relied upon. Kam-Almaz v. United States, 682 F.3d 1364, 1368 (Fed.Cir.2012); Suess v. United States, 535 F.3d 1348, 1359 (Fed.Cir.2008); Flexfab, L.L.C. v. United States, 424 F.3d 1254, 1265 (Fed.Cir.2005). Hurtado has pled sufficient facts to show the existence of a valid contract under either an express or implied-in-fact theory. She alleges that in 1998 she entered a written agreement with the United States for services as a confidential informant. Compl. ¶ 20. She further alleges that the government has acknowledged in wilting the existence of an agreement and has stated that Hurtado fulfilled her obligations under the agreement. Id. at ¶ 28. In addition, Hurtado alleges, she was paid a percentage of the monies seized by the" }, { "docid": "16122517", "title": "", "text": "inferred, “as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding.” Hercules, 516 U.S. at 424, 116 S.Ct. 981 (quoting Baltimore & Ohio R.R. Co. v. United States, 261 U.S. 592, 597, 43 S.Ct. 425, 67 L.Ed. 816 (1923)). Enron Fed. Solutions, Inc. v. United States, 80 Fed.Cl. at 409 (footnote omitted; emphasis in original); see also Council for Tribal Emp’t Rights v. United States, 112 Fed.Cl. at 252-53 (“quantum meruit permits the contractor to be ‘compensated under an implied-in-fact contract when the contractor confers a benefit to the government in the course of performing a government contract that is subsequently declared invalid.’ ” (quoting Gould, Inc. v. United States, 67 F.3d 925, 930 (Fed.Cir.1995))) (emphasis in original); Veridyne Corp. v. United States, 83 Fed.Cl. 575, 585-86 (2008) (“ ‘[T]hough a contract be unenforceable against the Government, because not properly advertised, not authorized, or for some other reason, it is only fair and just that the Government pay for goods delivered or services rendered and accepted under it.’ Id. [United States v. Amdahl Corp., 786 F.2d at 393.] This is so even where ‘an award is plainly or palpably illegal” and “made contrary to statutory or regulatory requirements because of some action or statement by the contractor.’ Id. at 395.”). A Judge of United States Court of Federal Claims explained that to recover on a quantum meruit or quantum valebant basis, however, the circumstances must permit the court to conclude that all the basic elements of an implied-in-faet contract were present between plaintiff and the government at the time of the alleged contract creation, including mutual intent, offer, acceptance, consideration, and authority on behalf of the government party to contract: “For contracts with the United States, however, an implied-in-faet contract — just as an express contract — requires an authorized agent of the Government.” Trauma Service Group v. United States, 104 F.3d at 1326 (citing City of El Centro v. United States, 922 F.2d 816, 820 (Fed.Cir.1990)). Importantly, an implied-in-fact contract will not be found if an express contract already covers" }, { "docid": "12925081", "title": "", "text": "and Gravee have not shown that the merger agreement “reflects an intention to benefit [them] directly.” Glass, 258 F.3d at 1354. We therefore conclude that Maher and Gravee have not pled, and could not plead, sufficient facts to establish that they are intended third-party beneficiaries of a contract between Horizon and the government. II Maher and Gravee also argue that they have an implied-in-fact contract with the government by virtue of promises they were given “directly by the Federal Government which were relied upon at the beginning of the merger talks and throughout the entire continued administration and management of [Horizon] up until the time of the takeover by the RTC.” According to Maher and Gravee, the government promised (and even required) that they would be the directors of Horizon, and that they must give up their existing pension plans from Wilmette with the understanding that Horizon would later establish comparable plans once it was financially stable. An implied-in-fact contract is “founded upon a meeting of minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding.” Hercules, Inc. v. United States, 516 U.S. 417, 424, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996) (quoting Balt. & Ohio R.R. v. United States, 261 U.S. 592, 597, 58 Ct.Cl. 709, 43 S.Ct. 425, 67 L.Ed. 816 (1923)). While an implied-in-fact contract may be inferred from the parties’ conduct, the required elements for contract formation — “a mutual intent to contract including an offer, an acceptance, and consideration” — are the same for express and implied-in-fact contracts. Trauma Serv. Group v. United States, 104 F.3d 1321, 1325 (Fed.Cir.1997). In addition, when trying to establish an implied-in-fact contract with the government, the complaint must allege that the government’s representative had the authority to enter into the alleged contract. Cf Sommers Oil Co. v. United States, 241 F.3d 1375, 1380 (Fed.Cir.2001) (finding that it “was sufficient for the complaint to allege that the government’s promise was authorized by a person having legal authority to do so”)." }, { "docid": "12307900", "title": "", "text": "the reasonable inference that the defendant is liable.’ ” Colida, 2009 WL 3172724 at *1 (quoting Iqbal, - U.S. at -, 129 S.Ct. at 1949 (internal brackets removed)). In this connection, Mr. Jumah has provided this court with copies of the CSAs he signed with the government. The most significant of these is the CSA signed in October 2002. While the CSA states that it was to be valid until October 2003, the parties agree that it was actually terminated in December 2002. See Ptf.’s Reply at 4 (Mr. Jumah admits that he “was ultimately deactivated in December 2002”); Mot. Dismiss 2 (“This court should dismiss Mr. Jumah’s breach of contract claim because ... the period of time for which he demands compensation ... is after the DEA terminated its contract with him....”). The parties further agree that no written agreement was in place at the time Mr. Jumah provided the information for which he now seeks payment. Given that Mr. Jumah freely admits that he had no written contract in place at the time he provided his information, the court holds that Mr. Jumah has failed to state a claim based on a written contract theory. B. The Plaintiff Has Not Stated a Claim under an Implied-in-Fact Contract Theory. In addition to claiming an entitlement to compensation pursuant to a written contract, the plaintiff claims that he had an implied-in-fact contract with the government. “An agreement implied in fact is ‘founded upon a meeting of minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding.’” Hercules Inc. v. United States, 516 U.S. 417, 424, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996) (quoting Baltimore & Ohio R.R. Co. v. United States, 261 U.S. 592, 597, 58 Ct.Cl. 709, 43 S.Ct. 425, 67 L.Ed. 816 (1923)); see also Flexfab, L.L.C. v. United States, 424 F.3d 1254, 1259 (Fed.Cir.2005); La Van v. United States, 382 F.3d 1340, 1346 (Fed.Cir.2004). In order to prove an implied-in-fact contract with the government, the plaintiff must" }, { "docid": "12925082", "title": "", "text": "is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding.” Hercules, Inc. v. United States, 516 U.S. 417, 424, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996) (quoting Balt. & Ohio R.R. v. United States, 261 U.S. 592, 597, 58 Ct.Cl. 709, 43 S.Ct. 425, 67 L.Ed. 816 (1923)). While an implied-in-fact contract may be inferred from the parties’ conduct, the required elements for contract formation — “a mutual intent to contract including an offer, an acceptance, and consideration” — are the same for express and implied-in-fact contracts. Trauma Serv. Group v. United States, 104 F.3d 1321, 1325 (Fed.Cir.1997). In addition, when trying to establish an implied-in-fact contract with the government, the complaint must allege that the government’s representative had the authority to enter into the alleged contract. Cf Sommers Oil Co. v. United States, 241 F.3d 1375, 1380 (Fed.Cir.2001) (finding that it “was sufficient for the complaint to allege that the government’s promise was authorized by a person having legal authority to do so”). Nothing indicates that the government promised, or even could have promised, to provide Maher and Gravee with employment and pension benefits. Instead Horizon, not the government, was responsible for employing Maher and Gravee and creating their new pension plans, which were in the form of deferred compensation trusts. Thus, any promises of employment and pension benefits arose directly from Maher and Gravee’s employ ment contracts with Horizon, not through an implied-in-fact contract with the government. Moreover, the Amended Complaint fails to plead the requisite elements of a contract with the government for employment and pension benefits. The government’s alleged promises identified in the Amended Complaint instead relate only to the regulatory treatment of Horizon, as does any alleged breach. According to the Amended Complaint, “[b]y virtue of [the government’s] breach of their promises as set forth above [regarding certain regulatory treatment], Respondents also directly and proximately caused Horizon to breach its contractual obligations to petitioners by terminating their employment, thereby resulting in financial losses to Petitioners well in excess of $1,000,000” (emphasis added). Thus, the" }, { "docid": "16335233", "title": "", "text": "as good a position as he would have been in had the contract been performed.’” Pl.’s Reply at 5. Therefore, the Court must also determine whether plaintiff provided the warranty and upgrade services pursuant to a contract implied in fact. A contract implied in fact is one “founded upon a meeting of the minds, which, although not embodied in an express contract, is inferred, as a fact, from the conduct of the parties showing, in light of the surrounding circumstances, their tacit understanding.” City of Cincinnati v. United States, 153 F.3d 1375, 1377 (Fed.Cir.1998) (quoting Baltimore & Ohio R.R. Co. v. United States, 261 U.S. 592, 597, 58 Ct.Cl. 709, 43 S.Ct. 425, 67 L.Ed. 816 (1923)); see also Hercules, Inc. v. United States, 516 U.S. 417, 423-24, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996). To establish the existence of an implied-in-fact contract, a plaintiff has the burden of proffering evidence establishing the same four criteria needed to demonstrate an express contract: (1) mutuality of intent to contract, (2) lack of ambiguity in offer and acceptance, (3) consideration, and (4) actual authority of the government representative whose conduct is relied upon to bind the Government in contract. Trauma Serv. Group v. United States, 104 F.3d 1321, 1325 (Fed.Cir.1997); Lewis v. United States, 70 F.3d 597, 600 (Fed.Cir.1995); City of El Centro v. United States, 922 F.2d 816, 820 (Fed.Cir.1990); Night Vision Corp. v. United States, 68 Fed.Cl. 368, 384 (2005). No contract implied in fact can exist where there is no evidence of a mutual intent to contract or a meeting of the minds with the Government. See Smith v. United States, 58 Fed.Cl. 374, 383 (2003), aff'd, 110 Fed.Appx. 898 (Fed.Cir.2004); see also Medina Constr., Ltd. v. United States, 43 Fed.Cl. 537, 558 (1999) (“[T]he documents before the Court do not demonstrate a meeting of the minds of the parties which is inferred from the parties’ conduct such that a tacit understanding and agreement was reached as would demonstrate an implied-in-fact contract.”) (internal quotations omitted). Plaintiff’s continued assertions that it had no obligation to perform the warranty and upgrade" }, { "docid": "16122516", "title": "", "text": "Federal Claims ruled that there was no contract between Perri and the government to pay him twenty-five percent of the amount the government received from the forfeiture that Perri alleged he aided the government in obtaining. Perri v. United States, 340 F.3d at 1343-44. The United States Court of Federal Claims interpreted Perri as follows: While it is true that the Federal Circuit and Court of Claims have permitted quantum meruit recovery, this occurs in the very limited circumstance where a plaintiff provides services or goods to the government pursuant to an attempted express contract, but either some defect prevents an express contract from actually coming into existence or the government simply refuses to pay. See Perri v. United States, 340 F.3d 1337, 1343-44 (Fed.Cir.2003) (citing Gould, Inc. v. United States, 935 F.2d 1271 (Fed.Cir.1991); United States v. Amdahl Corp., 786 F.2d 387, 393 (Fed.Cir.1986); and Prestex, Inc. v. United States, 162 Ct.Cl. 620, 320 F.2d 367 (1963)). In this type of ease, a contract is found if a meeting of the minds can be inferred, “as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding.” Hercules, 516 U.S. at 424, 116 S.Ct. 981 (quoting Baltimore & Ohio R.R. Co. v. United States, 261 U.S. 592, 597, 43 S.Ct. 425, 67 L.Ed. 816 (1923)). Enron Fed. Solutions, Inc. v. United States, 80 Fed.Cl. at 409 (footnote omitted; emphasis in original); see also Council for Tribal Emp’t Rights v. United States, 112 Fed.Cl. at 252-53 (“quantum meruit permits the contractor to be ‘compensated under an implied-in-fact contract when the contractor confers a benefit to the government in the course of performing a government contract that is subsequently declared invalid.’ ” (quoting Gould, Inc. v. United States, 67 F.3d 925, 930 (Fed.Cir.1995))) (emphasis in original); Veridyne Corp. v. United States, 83 Fed.Cl. 575, 585-86 (2008) (“ ‘[T]hough a contract be unenforceable against the Government, because not properly advertised, not authorized, or for some other reason, it is only fair and just that the Government pay for goods delivered or services rendered and accepted" }, { "docid": "12512425", "title": "", "text": "in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citations omitted). At the same time, a court is “ ‘not bound to accept as true a legal conclusion couched as a factual allegation.’ ” Id. (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). We review de novo a decision to dismiss a complaint for failure to state a claim under RCFC 12(b)(6). Hearts Bluff Game Ranch, Inc. v. United States, 669 F.3d 1326, 1328 (Fed.Cir.2012). We also review de novo the grant or denial of a motion to dismiss for lack of jurisdiction. See Frazer v. United States, 288 F.3d 1347, 1351 (Fed.Cir.2002). I We first address Kam-Almaz’s claim for breach of an implied-in-fact bailment contract. “An implied-in-fact contract with the government requires proof of (1) mutuality of intent, (2) consideration, (3) an unambiguous offer and acceptance, and (4) actual authority on the part of the government’s representative to bind the government in contract.” Hanlin v. United States, 316 F.3d 1325, 1328 (Fed.Cir.2003) (internal quotation marks omitted). An implied-in-fact contract is founded upon a meeting of the minds and “ ‘is inferred, as a fact, from the conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding.’ ” Id. (quoting Balt. & Ohio R.R. v. United States, 261 U.S. 592, 597, 58 Ct.Cl. 709, 43 S.Ct. 425, 67 L.Ed. 816 (1923)). “A bailment relationship is said to arise where an owner, while retaining title, delivers personalty to another for some particular purpose upon an express or implied contract. The relationship includes a return of the goods to the owner or a subsequent disposition in accordance with his instructions.” Lionberger v. United States, 371 F.2d 831, 840 (Ct.Cl.1967); see also 19 Williston on Contracts § 53:1 (4th ed. 2012) (defining a bailment as “a delivery of personalty for some particular purpose, or on mere deposit, upon a contract, express or implied, that after the purpose has been fulfilled it shall be redelivered to the person who delivered it, or otherwise" }, { "docid": "19065765", "title": "", "text": "claim must be dismissed for failure to state a claim because that count of the complaint does not allege facts sufficient to meet the requirements of an implied-in-faet contract. Because the court concludes that plaintiffs have failed to demonstrate the existence of such a contract, defendant’s motion to dismiss Count II under RCFC 12(b)(6) is granted. The Supreme Court has explained that “[a]n agreement implied in fact is ‘founded upon a meeting of minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding.’ ” Hercules, Inc. v. United States, 516 U.S. 417, 424, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996) (quoting Baltimore & Ohio R.R. Co. v. United States, 261 U.S. 592, 597, 43 S.Ct. 425, 67 L.Ed. 816 (1923)). The elements of an implied-in-fact contract are the same as those required for an express contract: (1) mutuality of intent; (2) lack of ambiguity in offer and acceptance; (3) consideration; and (4) actual authority to bind the government. See Hanlin v. United States, 316 F.3d 1325, 1328 (Fed.Cir.2003) (Hanlin II). Plaintiffs carry the burden of demonstrating the existence of an implied contract. Id. Plaintiffs argue that section 1603 is promissory in nature because it requires the government to award grants to any applicant who meets the requirements of the statute. Defendant, in contrast, counters that “[blinding precedent establishes that statutes cannot form the basis of a legally operative promise or offer on the part of the government.” Def.’s Mot. at 10 (citing Hanlin II, 316 F.3d at 1329-30). However, Hanlin II did not hold that a statute can never constitute an offer to enter into a contract. Rather, the Federal Circuit held that the particular statute at issue in that ease could not be interpreted in that manner. See Hanlin II, 316 F.3d at 1330 (“We discern no language in the statute or regulation that indicates an intent to enter into a contract with an attorney who has reached and submitted a proper fee agreement with a veteran.”). Although the" }, { "docid": "6954855", "title": "", "text": "States in contract.” Total Medical Management, Inc. v. United States, 104 F.3d 1314, 1319 (Fed.Cir.1997), reh’g denied and in banc suggestion declined (Mar 27, 1997) (citing Thermalon Indus., Ltd. v. United States, 34 Fed. Cl. 411, 414 (1995) (citing City of El Centro v. United States, 922 F.2d 816, 820 (Fed.Cir.1990), cert. denied, 501 U.S. 1230, 111 S.Ct. 2851, 115 L.Ed.2d 1019 (1991), and Fincke v. United States, 230 Ct.Cl. 233, 675 F.2d 289, 295 (1982))). An implied-in-fact contract can only exist in the absence of an express contract. Algonac Mfg. Co. v. U.S., 192 Ct.Cl. 649, 428 F.2d 1241, 1255 (1970), supplemented by Algonac Mfg. Co. v. U.S., 198 Ct.Cl. 258, 458 F.2d 1373 (1972). In order to establish jurisdiction based on an implied-in-fact contract, the plaintiff also must establish the elements of a contract, including offer, acceptance, consideration, mutuality of intent, and definiteness of terms. Girling Health Systems Inc. v. United States, 949 F.2d at 1146-47 (citing Tree Farm Dev. Corp. v. United States, 218 Ct.Cl. 308, 585 F.2d 493, 500 (1978); Somali Dev. Bank v. United States, 205 Ct.Cl. 741, 508 F.2d 817, 822 (1974)); see also City of El Centro v. United States, 922 F.2d at 820 (citing Russell Corp. v. United States, 210 Ct.Cl. 596, 537 F.2d 474, 482 (1976), cert. denied, 429 U.S. 1073, 97 S.Ct. 811, 50 L.Ed.2d 791 (1977); Fincke v. United States, 675 F.2d at 295); Fincke v. United States, 675 F.2d at 295 (citing Baltimore and Ohio R.R. Co. v. United States, 261 U.S. 592, 43 S.Ct. 425, 67 L.Ed. 816 (1923)); Shearin v. United States, 25 Cl.Ct. 294, 296 n. 5, aff'd, 983 F.2d 1085 (Fed.Cir.1992) (table decision). The plaintiff also must establish that the government official who allegedly formed the contract had actual authority to bind the government. City of El Centro v. United States, 922 F.2d at 820 (citing Juda v. United States, 6 Cl.Ct. 441, 452 (1984), appeal dismissed sub nom. by People of Bikini v. United States, 859 F.2d 1482 (Fed.Cir.1988) (citing Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384, 68 S.Ct. 1," }, { "docid": "7750155", "title": "", "text": "at least five FEMA officials and has pointed to no unanswered question as to who the contracting officers were in FEMA or on St. Croix. Because there is no evidence to support WAPA’s claim that the contract was ratified by someone in the federal government who had the authority to do so, summary judgment was appropriate unless, as WAPA also argues, the approval of a contracting officer was not necessary. WAPA maintains that no contracting officer needed to approve the agreement for the United States because this case comes within a “branch of the implied-in-fact contract doctrine that applies specifically in emergency situations.” To prove an implied-in-fact contract, the party alleging that contract must show the same elements required in an express contract: offer, acceptance, and consideration. See Trauma Service Group v. United States, 104 F.3d 1321, 1325 (Fed.Cir.1997). Proof of an implied-in-fact contract comes not from an express agreement, however, but from “conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding.” Id. (quoting Hercules, Inc. v. United States, 516 U.S. 417, 116 S.Ct. 981, 985, 134 L.Ed.2d 47 (1996) (quoting Baltimore & Ohio R.R. Co. v. United States, 261 U.S. 592, 597, 58 Ct.Cl. 709, 43 S.Ct. 425, 67 L.Ed. 816 (1923))). Significantly, an implied-in-fact contract, like an express contract, must include authorization (whether implied or express) by an agent with the authority to bind the United States. Trauma Service, 104 F.3d at 1326; City of El Centro, 922 F.2d at 820. WAPA argues that the required authorization can be implied from the high-ranking officials who tacitly approved the contract and that because this was an emergency situation a contracting officer was not required to bind the United States. There is, as WAPA maintains, evidence that federal officials played a major part in negotiating and overseeing Gardiner’s contract to provide security and maintenance services. This evidence also indicates that the federal government may have benefitted from the security services because of its ownership of the generators. Federal officials also negotiated fee reductions on at least two occasions; in one instance WAPA claims that" }, { "docid": "12307901", "title": "", "text": "he provided his information, the court holds that Mr. Jumah has failed to state a claim based on a written contract theory. B. The Plaintiff Has Not Stated a Claim under an Implied-in-Fact Contract Theory. In addition to claiming an entitlement to compensation pursuant to a written contract, the plaintiff claims that he had an implied-in-fact contract with the government. “An agreement implied in fact is ‘founded upon a meeting of minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding.’” Hercules Inc. v. United States, 516 U.S. 417, 424, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996) (quoting Baltimore & Ohio R.R. Co. v. United States, 261 U.S. 592, 597, 58 Ct.Cl. 709, 43 S.Ct. 425, 67 L.Ed. 816 (1923)); see also Flexfab, L.L.C. v. United States, 424 F.3d 1254, 1259 (Fed.Cir.2005); La Van v. United States, 382 F.3d 1340, 1346 (Fed.Cir.2004). In order to prove an implied-in-fact contract with the government, the plaintiff must demonstrate: (1) mutuality of intent; (2) consideration; (3) lack of ambiguity in the offer and acceptance; and (4) actual authority to bind the Government in contract on the part of the government representative whose conduct is relied upon. Flexfab, 424 F.3d at 1258; see also Princess I, 74 Fed.Cl. at 650-53 (2006) (discussing implied-in-fact contracts between a confidential informant and the DEA); Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384, 68 S.Ct. 1, 92 L.Ed. 10 (1947). Mr. Jumah predicates his implied-in-fact contract claims on three theories. First, he claims that at the time he signed a written contract, “[T]he DEA agents inform [sic] Mr. Jumah that all other promisses [sic], such as the 20 percent [share of seized assets] and the help with Mr. Jumah[’s] [citizenship and passport, will be as an Oraly [sic] add[-]on to the contract.” Compl. ¶ 7. Second, he claims that a course of dealing with the DEA supports the existence of an implied-in-fact contract. The primary support he provides for this contention is the fact that he" }, { "docid": "16122451", "title": "", "text": "Serv. Grp. v. United States, 104 F.3d at 1326); Bay View, Inc. v. United States, 278 F.3d 1259, 1265-66 (Fed.Cir.2001), reh’g and reh’g en banc denied, 285 F.3d 1035 (Fed.Cir.), cert. denied, 537 U.S. 826, 123 S.Ct. 114, 154 L.Ed.2d 37 (2002); Westlands Water Dist. v. United States, 109 Fed.Cl. 177, 203 (2013); Peninsula Grp. Capital Corp. v. United States, 93 Fed.Cl. at 728 (citing Balt. & Ohio R.R. Co. v. United States, 261 U.S. at 597, 43 S.Ct. 425); Russell Corp. v. United States, 210 Ct.Cl. at 609, 537 F.2d at 482. Such an agreement will not be implied “unless the meeting of minds was indicated by some intelligible conduct, act or sign.” Balt. & Ohio R.R. Co. v. United States, 261 U.S. at 598, 43 S.Ct. 425; see also Russell Corp. v. United States, 210 Ct.Cl. at 609, 537 F.2d at 482. “A party alleging either an express or implied-in-faet contract with the government ‘must show a mutual intent to contract including an offer, an acceptance, and consideration.’” Bank of Guam v. United States, 578 F.3d at 1326 (quoting Trauma Serv. Grp. v. United States, 104 F.3d at 1325); see also Chattler v. United States, 632 F.3d 1324, 1330 (Fed.Cir.) (citing Trauma Serv. Grp. v. United States, 104 F.3d at 1325), reh’g en banc denied (Fed.Cir.2011); Hanlin v. United States, 316 F.3d 1325, 1328 (Fed.Cir.2003) (citing City of Cincinnati v. United States, 153 F.3d 1375, 1377 (Fed.Cir.1998)); Total Med. Mgmt., Inc. v. United States, 104 F.3d 1314, 1319 (Fed.Cir.) (“The requirements for a valid contract with the United States are: a mutual intent to contract including offer, acceptance, and consideration; and authority on the part of the government representative who entered or ratified the agreement to bind the United States in contract.”) (citations omitted), reh’g denied and en banc suggestion declined (Fed.Cir.), cert. denied, 522 U.S. 857, 118 S.Ct. 156, 139 L.Ed.2d 101 (1997); Huntington Promotional & Supply, LLC v. United States, 114 Fed.Cl. 760, 767 (2014); Eden Isle Marina, Inc. v. United States, 113 Fed.Cl. 372, 492 (2013); Council for Tribal Emp’t Rights v. United States, 112" }, { "docid": "19343687", "title": "", "text": "United States, 261 U.S. 592, 597, 58 Ct.Cl. 709, 43 S.Ct. 425, 67 L.Ed. 816 (1923); Russell Corp. v. United States, 210 Ct.Cl. 596, 537 F.2d 474, 482 (1976). With an implied contract, however, the nature of the evidence showing this intent will differ. Under an implied contract, courts will infer a meeting of the minds from the conduct of the parties, rather than from their express words. See Balt. & Ohio, 261 U.S. at 597, 43 S.Ct. 425 (“[A]n agreement ‘implied in fact,’ founded upon a meeting of minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding”). Courts have frequently held that “in negotiations where the parties contemplate that their contractual relationship would arise by means of a written agreement, no contract can be implied.” Pac. Gas & Elec. Co. v. United States, 3 Cl.Ct. 329, 339 (1983). See also Essen Mall Props. v. United States, 21 Cl.Ct. 430, 439-440 (1990); City of Klawock v. United States, 2 Cl.Ct. 580, 585 (1983), aff'd 732 F.2d 168 (Fed.Cir.1984). This necessarily follows from the view that a contract is founded upon a meeting of the minds; when the parties “intend that their negotiations shall be finally reduced to writing and signed by them as evidence of the terms and conditions of the agreement, there exists no binding contract until the written contract setting forth such terms and conditions is executed.” Ship Constr. & Trading Co. v. United States, 91 Ct.Cl. 419, 1940 WL 4096, at *24 (1940). 2. The Party’s Statements Did Not Create an Express Contract. Plaintiff argues that a contract exists between defendant and itself. Plaintiff alleges that its July 2003 Proposal constituted an offer and that defendant’s February 2004 Response was an acceptance of that offer. Furthermore, plaintiff alleges that defendant verbally confirmed that acceptance in a February phone call to plaintiff. Defendant challenges these assertions. The July Proposal was not an offer. The Restatement defines an offer as “the manifestation of willingness to enter into a" }, { "docid": "16122449", "title": "", "text": "privity of contract.”); S. Cal. Fed. Sav. & Loan Ass’n v. United States, 422 F.3d 1319, 1328 (Fed.Cir.) (“A plaintiff must be in privity with the United States to have standing to sue the sovereign on a contract claim,” but noting exceptions to this general rule (citing Anderson v. United States, 344 F.3d 1343, 1352 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2003))); United States v. Algoma Lumber Co., 305 U.S. 415, 421, 59 S.Ct. 267, 83 L.Ed. 260 (1939), reh’g and reh’g en banc denied (Fed.Cir.2005), cert. denied, 548 U.S. 904 (2006); Erickson Air Crane Co. of Wash. v. United States, 731 F.2d 810, 813 (Fed.Cir.1984) (“The government consents to be sued only by those with whom it has privity of contract.”). To have privity of contract with the government, and, therefore, invoke the jurisdiction of the United States Court of Federal Claims for its breach of contract claim, plaintiff “must show that either an express or implied-in-faet contract underlies [the] claim.” Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1325 (Fed.Cir.1997) “For there to be an express contract, the parties must have intended to be bound and must have expressed their intention in a manner capable of understanding. A definite offer and an unconditional acceptance must be established.” Russell Corp. v. United States, 210 Ct.Cl. 596, 606, 537 F.2d 474, 481 (1976), cert. denied, 429 U.S. 1073, 97 S.Ct. 811, 50 L.Ed.2d 791 (1977). Implied-in-faet contracts are agreements “ ‘ “founded upon a meeting of the minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding.” ’ ” Trauma Serv. Grp. v. United States, 104 F.3d at 1325 (quoting Hercules, Inc. v. United States, 516 U.S. 417, 424, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996) (quoting Balt. & Ohio R.R. Co. v. United States, 261 U.S. 592, 597, 43 S.Ct. 425, 67 L.Ed. 816 (1923))); see also Kam-Almaz v. United States, 682 F.3d at 1368; Bank of Guam v. United States, 578 F.3d at 1329 (citing Trauma" }, { "docid": "19343697", "title": "", "text": "a call, but, regardless of that factual dispute, plaintiff has a larger problem: Colonel Trumbull was merely a government contractor and lacked authority to bind the government. As discussed above, the government can only be bound on a contract by an agent with actual authority to bind it. See Trauma Serv. Group v. United States, 104 F.3d 1321, 1325 (Fed.Cir.1997). The relevant regulations here specify that only the DASA can bind the government. 10 U.S.C. § 18240(a); Army Reg. 5-9e. Colonel Trumbull, a non-government employee, could not bind the government to a contract. No contract ever came into existence in this ease. Both parties here in numerous documents stated their belief that a binding exchange agreement would consummate the negotiations. Defendant did state its intention to be bound in the future, but, as in Essen Mall, plaintiff was aware that the defendant’s statements of intent to contract were contingent upon a number of factors. Essen Mall, 21 Cl.Ct. at 440. Furthermore, as in Russell Corporation, the parties “understood and agreed that the exchange would not be completed until there had been compliance with the applicable regulations,” which required approval of the DASA. Russell Corp., 537 F.2d at 483. Defendant never indicated its unambiguous, unconditional acceptance of the contract, and no express contract was formed. 3. The Party’s Conduct Did Not Create an Implied-In-Fact Contract. Plaintiff also alleges that an implied-in-fact contract was created. An implied-in-fact contract is “ ‘an agreement ... founded upon a meeting of minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding.’ ” Barrett Ref. Corp. v. United States, 242 F.3d 1055, 1059 (Fed.Cir.2001) (quoting Balt. & Ohio R. Co. v. United States, 261 U.S. 592, 597, 58 Ct.Cl. 709, 43 S.Ct. 425, 67 L.Ed. 816 (1923)). This type of contract requires the existence of the same elements as an express contract. See, e.g., Barrett Ref, 242 F.3d at 1060; Ryan v. United States, 57 Fed.Cl. 731, 733 (2003). Plaintiffs argument faces two large problems. First," }, { "docid": "6954851", "title": "", "text": "is well established in our cases. An agreement implied in fact is ‘founded upon a meeting of minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding.’ Baltimore & Ohio R. Co. v. United States, 261 U.S. 592, 597, 43 S.Ct. 425, 426-427, 67 L.Ed. 816 (1923). See also Russell v. United States, 182 U.S. 516, 530, 21 S.Ct. 899, 904, 45 L.Ed. 1210 (1901) (‘[T]o give the Court of Claims jurisdiction the demand sued on must be founded on a convention between the parties — “a coming together of minds’”). By contrast, an agreement implied in law is a ‘fiction of law” where ‘a promise is imputed to perform a legal duty, as to repay money obtained by fraud or duress.’ Baltimore & Ohio R. Co., supra, at 597, 43 S.Ct., at 426. Hercules Inc. v. United States, — U.S. at —, 116 S.Ct. at 985. A well-pleaded allegation in the complaint of an underlying express, or implied-in-fact, contract “is sufficient to overcome challenges to jurisdiction” in the United States Court of Federal Claims, Trauma Serv. Group v. United States, 104 F.3d 1321, 1325 (Fed.Cir.1997) (citing Spruill v. Merit Sys. Protection Bd., 978 F.2d 679, 686 (Fed. Cir.1992); Gould, 67 F.3d at 929; Do-Well Mach. Shop, Inc. v. United States, 870 F.2d 637, 639-40 (Fed.Cir.1989)). To establish a claim upon which relief can be granted, a plaintiff must allege the elements necessary to establish the existence of an express contract or an implied-in-fact contract. Trauma Serv. Group v. United States, 104 F.3d at 1325-27 (upholding dismissal for failure to state a claim upon which relief could be granted, pursuant to RCFC 12(b)(4), rather than lack of subject-matter jurisdiction, pursuant to RCFC 12(b)(1), when a plaintiffs allegations are based upon claims of an express or implied-in-fact contract, but fail sufficiently to set forth the factual elements necessary to support either type of contract); cf. Girling Health Sys., Inc. v. United States, 949 F.2d 1145, 1146-47 (Fed.Cir. 1991), cert. denied, 503" }, { "docid": "21228806", "title": "", "text": "up to $100,000 per operation.” Grieg Dep. at 38. In addition, the NRCS stated in its letter to plaintiff dated December 23, 2005, that “[t]he assistance that we provide must be authorized and funded by Congress____the NRCS national policy that covers the program in which [plaintiff] received funding, caps the amount of financial assistance to any entity at $100,000.” Def.’s Br. filed Nov. 9, 2006, Ex. 5. Consistent with the Supreme Court’s holding in Hercules, “the Anti-Deficiency Act, and the contracting officer’s presumed knowledge of its prohibition, [is] strong evidence that the officer would not have provided, in fact, the contractual indemnification ... claim[ed].” 516 U.S. at 427-28, 116 S.Ct. 981. Plaintiff has not plead the requirements of a valid contract, as no mutual intent to contract could have existed due to the preclusive effect of the Anti-Deficiency Act. 7. Warranty implied-in-latv Assuming that plaintiff had plead a valid contract, defendant alternatively argues that the NRCS Agreement only created an implied-in-law warranty, not an implied-in-fact warranty, the former not being subject to the jurisdiction of the Court of Federal Claims. “The Tucker Act ... does not confer jurisdiction of claims against the United States, implied at law, they must be implied in fact.” Lopez, 858 F.2d at 714-15. “Implied-in-fact contracts differ from contracts implied in law (quasi-contracts), where a duty is imposed by operation of law without regard to the intent of the parties.” Russell Corp. v. United States, 210 Ct.Cl. 596, 537 F.2d 474, 482 (1976). Implied-in-fact contracts are characterized by “circumstances [that] strongly support[ ] a factual inference that a warranty was implied.” Lopez, 858 F.2d at 715. “An agreement implied in fact is ‘founded upon a meeting of minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, them tacit understanding.’” Hercules, 516 U.S. at 424, 116 S.Ct. 981 (quoting Baltimore & Ohio R.R. Co. v. United States, 261 U.S. 592, 597, 58 Ct.Cl. 709, 43 S.Ct. 425, 67 L.Ed. 816 (1923)). “In the absence of allegation or showing of" }, { "docid": "16122450", "title": "", "text": "there to be an express contract, the parties must have intended to be bound and must have expressed their intention in a manner capable of understanding. A definite offer and an unconditional acceptance must be established.” Russell Corp. v. United States, 210 Ct.Cl. 596, 606, 537 F.2d 474, 481 (1976), cert. denied, 429 U.S. 1073, 97 S.Ct. 811, 50 L.Ed.2d 791 (1977). Implied-in-faet contracts are agreements “ ‘ “founded upon a meeting of the minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding.” ’ ” Trauma Serv. Grp. v. United States, 104 F.3d at 1325 (quoting Hercules, Inc. v. United States, 516 U.S. 417, 424, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996) (quoting Balt. & Ohio R.R. Co. v. United States, 261 U.S. 592, 597, 43 S.Ct. 425, 67 L.Ed. 816 (1923))); see also Kam-Almaz v. United States, 682 F.3d at 1368; Bank of Guam v. United States, 578 F.3d at 1329 (citing Trauma Serv. Grp. v. United States, 104 F.3d at 1326); Bay View, Inc. v. United States, 278 F.3d 1259, 1265-66 (Fed.Cir.2001), reh’g and reh’g en banc denied, 285 F.3d 1035 (Fed.Cir.), cert. denied, 537 U.S. 826, 123 S.Ct. 114, 154 L.Ed.2d 37 (2002); Westlands Water Dist. v. United States, 109 Fed.Cl. 177, 203 (2013); Peninsula Grp. Capital Corp. v. United States, 93 Fed.Cl. at 728 (citing Balt. & Ohio R.R. Co. v. United States, 261 U.S. at 597, 43 S.Ct. 425); Russell Corp. v. United States, 210 Ct.Cl. at 609, 537 F.2d at 482. Such an agreement will not be implied “unless the meeting of minds was indicated by some intelligible conduct, act or sign.” Balt. & Ohio R.R. Co. v. United States, 261 U.S. at 598, 43 S.Ct. 425; see also Russell Corp. v. United States, 210 Ct.Cl. at 609, 537 F.2d at 482. “A party alleging either an express or implied-in-faet contract with the government ‘must show a mutual intent to contract including an offer, an acceptance, and consideration.’” Bank of Guam v. United" } ]

[ { "docid": "14152733", "title": "", "text": "time. An appropriate order will issue. . Because plaintiff had fears for his safety in the PRCC’s general population, he was assigned to protective custody by the Institutional Classification Committee at an August 13, 1998 hearing. . Plaintiff states that this was his first opportunity to have recreation at the PRCC and that Couch did not inform plaintiff where he was being taken for recreation. . Plaintiff states that Couch went outside the basketball court at the perimeter of the fence on the exterior of the recreation area. . Plaintiff specifies that the correctional officer in a nearby tower did not see the assault because he was distracted by a conversation with two inmates. . Alexander v. Hawk, 159 F.3d 1321, 1327 (11th Cir.1998) (Bivens claim). . Whitley v. Hunt, 158 F.3d 882, 887 (5th Cir.1998) (Bivens claim). . Lunsford v. Jumao-As, 155 F.3d 1178 (9th Cir.1998) (Bivens claim). . Garrett v. Hawk, 127 F.3d 1263 (10th Cir. 1997) (Bivens claim). . Many district courts, including two in this circuit, have held that § 1997e(a) requires inmates seeking solely monetary damages to exhaust their administrative remedies, even if the prison grievance system does not award money damages. See, e.g., Sallee v. Joyner, 1999 WL 101387, at *1 (E.D.Va. Feb.23, 1999) (Bivens claim); Beeson v. Fishkill Correctional Facility, 28 F.Supp.2d 884 (S.D.N.Y. 1998) (§ 1983 claim); Decker v. Watch Commander John Doe, 1998 WL 883300, at *2 (S.D.N.Y. Dec. 17, 1998) (§ 1983 claim); Fortes v. Harding, 19 F.Supp.2d 323 (M.D.Pa. 1998) (Bivens claim); Funches v. Reish, 1998 WL 695904, at *9 (S.D.N.Y. Oct.5, 1998) (Bivens claim); Moore v. Smith, 18 F.Supp.2d 1360, 1364 (N.D.Ga.1998)(§ 1983 claim); Smith v. Stubblefield, 30 F.Supp.2d 1168 (E.D.Mo.1998) (§ 1983 claim); Spence v. Mendoza, 993 F.Supp. 785, 788-89 (E.D.Cal. 1998) (§ 1983 claim); Gibbs v. Bureau of Prison Office, 986 F.Supp. 941, 944 (D.Md.1997)(Bivens claim). However, other district courts have held that such inmates need not comply with § 1997e(a)'s exhaustion requirement in prison grievance systems that do not award monetary relief. See, e.g., Lacey v.C.S.P. Solano Med. Staff, 990 F.Supp. 1199, 1205 (E.D.Cal. 1997)(§" } ]

[ { "docid": "22355118", "title": "", "text": "comply with the 1996 Act, even though the applicable intra-pris-on administrative process in Ohio does not allow recovery of damages as an “available” administrative remedy. For the reasons that follow we hold that prisoners must exhaust the prison’s grievance procedures before filing suit in federal court even though the damages remedy sought is not an available remedy in the administrative process. We conclude in this case, however, that the plaintiff substantially complied with the new exhaustion requirement as a result of the numerous complaints he filed with prison officials and the contacts that he had with prison officials about the injury that he suffered. We therefore reverse and remand to the district court for adjudication on the merits of plaintiffs action. The circuits are in some conflict on the issue of whether prisoners must exhaust under the 1996 Act if they seek monetary damages. Two circuits have held in Bivens-type actions by federal prisoners that exhaustion in money damages cases is unnecessary because federal prison regulations do not allow for administrative review at all if the federal prisoner seeks damages. Whitley v. Hunt, 158 F.3d 882 (5th Cir.1998); Garrett v. Hawk, 127 F.3d 1263 (10th Cir.1997). On the other hand, the Eleventh Circuit has held that even where the federal prison system denies review in such money damages cases, the federal prisoner must still attempt to have his complaint reviewed. Alexander v. Hawk, 159 F.3d 1321, 1325 (11th Cir.1998). Although it makes sense to excuse exhaustion of the prisoner’s complaint where the prison system has a flat rule declining jurisdiction over such cases, it does not make sense to excuse the failure to exhaust when the prison system will hear the case and attempt to correct legitimate complaints by providing some remedy, even though it will not pay damages. In Perez v. Wisconsin Dep’t of Corrections, 182 F.3d 532 (7th Cir.1999), the Seventh Circuit made this distinction in a state prisoner medical case. It held a prisoner must exhaust in a money damages case unless administrative action could provide no remedy of any kind. In Brown v. Toombs, 139 F.3d" }, { "docid": "14915018", "title": "", "text": "only state action. See McCarthy v. Madigan, 503 U.S. 140, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992). However, the plain language of the new statute and the legislative history of the Reform Act indicate that Congress intended that all prisoners, including federal prisoners, be required to exhaust their available administrative remedies before bringing a Bivens claim in federal court. As one congressman stated during floor debate, “[t]he new administrative exhaustion language in [the Reform Act] will require that all cases brought by Federal inmates contesting any aspect of their incarceration be submitted to the administrative remedy process before proceeding to court.” 141 Cong. Rec. H14078-02, H141105 (daily ed. Dec. 6, 1995) (remarks of Congressman Lobiondo); see also Garrett v. Hawk, 127 F.3d 1263, 1265-66 (10th Cir.1997). Plaintiff also contends that because he cannot receive monetary damages through the Bureau of Prisons Administrative Remedy Program he has no “available” remedy under the Reform Act. The case on which plaintiff relies, however, and under which he conducts his analysis, McCarthy v. Madigan, 503 U.S. 140, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992), is no longer controlling in light of the exhaustion requirement in § 1997e(a) as amended. McCarthy held that federal prisoners bringing a Bivens action that sought only money damages were not required to exhaust the Bureau of Prisons grievance procedure. McCarthy withheld ruling on whether exhaustion would be required where a federal prisoner sought injunctive or other relief, in addition to monetary relief, like the plaintiff herein. Finally, McCarthy recognized that when Congress specifically mandates exhaustion, it is required and the courts may not excuse the requirement. With the passage of the Reform Act, Congress has now specifically mandated the exhaustion of remedies through the prison grievance system. Even before passage of the Reform Act, this Court held that federal prisoners seeking injunctive relief must exhaust administrative remedies before coming to federal court, even if the prisoner also asserts a claim for monetary damages. Davis v. Keohane, 835 F.2d 1147, 1148 (6th Cir.1987). Every circuit court that has addressed the issue has held that if a federal prisoner asserts a" }, { "docid": "23433422", "title": "", "text": "monetary damages. This Circuit has not addressed that question. In Garrett v. Hawk, 127 F.3d 1263 (10th Cir.1997), the Tenth Circuit held that § 1997e does not require a federal prisoner seeking exclusively monetary relief to pursue administrative remedies prior to filing a Bivens claim against prison officials. The Court reasoned that McCarthy’s holding that Congress did not intend to require exhaustion of unavailable remedies survived in the plain language of the amended statute. 127 F.3d at 1266; see also 42 U.S.C.A. § 1997e (Supp.1998) (“No action shall be brought ... until such administrative remedies as are available are exhausted.”) (emphasis added). Noting that Congress had not seen fit to enact administrative remedies that would, or even could, provide monetary relief to prisoners pressing Bivens claims, the Court held that § 1997e could not be construed to require the exhaustion of nonexistent remedies. Garrett, 127 F.3d at 1267; see also McCarthy, 112 S.Ct. at 1092 (“Congress, of course, is free to design or require an appropriate administrative procedure for a prisoner to exhaust his claim for money damages.”). Although the Tenth Circuit is the only Circuit to have directly addressed the issue, the Ninth Circuit likewise adheres to the rule that § 1997e does not require that a federal prisoner seeking only monetary relief pursue administrative remedies prior to filing a Bivens claim. See, e.g., Lunsford v. Jumao-As, 155 F.3d 1178 (9th Cir.1998). The plain language of § 1997e requires only the exhaustion of “available” administrative remedies. We infer from that term that Congress did not intend to require the exhaustion of unavailable remedies. Given that the statute does not specify when an administrative remedy will be considered “available,” we must rely upon traditional methods of statutory construction to give meaning to the term. We recently considered whether an administrative remedy remained “available” within the meaning of § 1997e. In Underwood v. Wilson, 151 F.3d 292 (5th Cir.1998), the Court examined whether an administrative remedy was still “available,” or instead should be deemed “exhausted,” when the prisoner had filed the appropriate grievance but prison officials had failed to respond within" }, { "docid": "22069062", "title": "", "text": "Bivens actions. See, e.g., Lavista v. Beeler, 195 F.3d 254, 256 (6th Cir.1999). Bivens actions are by definition “brought ... under ... Federal law,” 42 U.S.C. § 1997e(a), and Congress clearly intended to sweep Bivens actions into the auspices of the § 1997e(a) when it enacted the PLRA, see Lavista, 195 F.3d at 256 (collecting legislative history); see also Alexander v. Hawk, 159 F.3d 1321, 1324-25 (11th Cir.1998) (same); Garrett v. Hawk, 127 F.3d 1263, 1265 (10th Cir.1997) (same). Several courts of appeals have addressed the exhaustion and futility question with which we are faced. Two general lines of authority have emerged from these cases. In cases in which a prison’s internal grievance procedure cannot provide money damages and the plaintiff asks only for money damages arising only out of isolated past harms, a number of courts have recognized and applied a futility exception to § 1997e(a)’s exhaustion requirement. These courts, and the district courts that agree with them, reason that it is senseless to force a prisoner to engage in the “empty formality” of petitioning the prison administrative process for a form of relief that it cannot provide. White v. Fauver, 19 F.Supp.2d 305, 317 (D.N.J.1998) (Orlofsky, J.) (“Any other interpretation would compel the conclusion that ‘Congress intended to erect meaningless barriers to suit.’ ”) (citation omitted). These courts, as do others, see infra note 4, also conclude that § 1997e(a) is not a jurisdictional requirement, which by definition cannot be subject to a futility exception. Rather, they hold that § 1997e(a) is a codification within the PLRA of the doctrine of exhaustion of administrative remedies, which before the PLRA was enacted had a futility exception grafted upon it. See, e.g., Rumbles, 182 F.3d at 1067-68. Therefore, they conclude, it is appropriate to apply the futility exception when it is warranted, much in the same way a court would equitably toll a statute of limitations. Two courts of appeals and several district courts have refused to apply a futility exception to § 1997e(a) in light of the way the PLRA amended the section. See, e.g., Wyatt v. Leonard, 193" }, { "docid": "23573065", "title": "", "text": "even where monetary relief is not available within the prison grievance system. Because the California Department of Corrections (“CDC”) grievance procedures do not allow for monetary damage awards, see Lacey, 990 F.Supp. at 1205 (“[CDC] grievance process does not provide for monetary relief’), the question is whether those procedures are an “available remedy” where a prisoner seeks only monetary damages. Authorities are split. See Beeson v. Fishkill Correctional Facility, 28 F.Supp.2d 884, 888 (S.D.N.Y.1998) (federal courts “have differed ... about whether to apply § 1997e(a) where plaintiffs seek money damages and such relief is not ‘available’ through the administrative process”) (collecting cases). Compare, e.g., Garrett v. Hawk, 127 F.3d 1263, 1266 (10th Cir.1997) (section 1997e(a)’s exhaustion requirement applies only to the extent that the administrative process could provide the relief sought), and Whitley v. Hunt, 158 F.3d 882, 886-87 (5th Cir.1998) (same), with Alexander v. Hawk, 159 F.3d 1321, 1326 (11th Cir.1998) (exhaustion mandatory even where the administrative process does not provide the requested relief; “available remedy” does not mean “adequate remedy”). Ultimately, however, the case on appeal is governed by our decision in Lunsford v. Jumao-As, 155 F.3d 1178 (9th Cir.1998). In Lunsford, we were reviewing the claim of a federal prisoner “seeking] only damages in his [Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ] action for claims arising from past conduct by prison officials.... ” 155 F.3d at 1179. We held that “Lunsford was ... not required to exhaust his administrative remedies before filing this lawsuit in the district court in light of the fact that the [Bureau of Prison’s] Administrative Remedy Program only provides for injunctive relief.” Id. The holding in Lunsford amounts to a rule that federal prisoners pressing Bivens claims need not pursue prison remedies when they are seeking exclusively monetary relief, and there are no prison remedies capable of affording such relief. In this regard, Lunsford is consistent with pre-PLRA law. See McCarthy, 503 U.S. at 149, 112 S.Ct. 1081 (prisoner need not exhaust administrative remedies before pursuing Bivens claim for damages); Cooney v. Edwards," }, { "docid": "22088079", "title": "", "text": "Let us suppose that Wisconsin never offers financial compensation to a prisoner (though we can’t see any rule that prevents it, and cases such as West v. Gibson, — U.S. -, 119 S.Ct. 1906, 144 L.Ed.2d 196 (1999), show that some agencies, at least, award compensatory damages). Still, the statutory question is whether any “remedies” are “available”; § 1997e(a) does not require the prison to use the prisoner’s preferred remedy. Alexander holds that a prisoner cannot avoid § 1997e(a) just by limiting his demand in court to money, see 159 F.3d at 1326-28, and on this issue too we agree with the eleventh circuit — though several courts of appeals have gone the other way. See Whitley v. Hunt, 158 F.3d 882, 887 (5th Cir.1998); Lunsford v. Jumao-As, 155 F.3d 1178 (9th Cir.1998); Garrett v. Hawk, 127 F.3d 1263, 1267 (10th Cir.1997). Courts that treat suits for money damages as unaffected by § 1997e(a) rely on McCarthy v. Madigan, 503 U.S. 140, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992). Until the plra, there was no statutory exhaustion requirement for federal prisoners’ suits. Courts generally required exhaustion nonetheless, following the norm in administrative law. McCarthy held that exhaustion was unnecessary when the plaintiff sought only money damages, because the Bureau of Prisons did not award money in administrative proceedings. But the Court also pointedly remarked that its conclusion depended on the absence of a statutory exhaustion requirement for federal prisoners, even though § 1997e required exhaustion by some state prisoners. 503 U.S. at 149-50, 112 S.Ct. 1081. The plra altered the landscape. Exhaustion now is required for both state and federal prisoners, and the requirement that the administrative remedy be “plain, speedy, and effective” has been deleted. Section 1997e would not be worth much if prisoners could evade it simply by asking for relief that the administrative process is unable to provide. An administrative claim may help to narrow a dispute or avoid the need for litigation. Administrative remedies can help even when the prisoner wants damages. Take Perez’s claim. He believes that the medical care provided for his back problem" }, { "docid": "17356047", "title": "", "text": "GDC Inmate Grievance Procedures do not provide for the monetary damages award plaintiffs seek. At least with regard to the issue of what remedies are “available” under section 1997e(a), some courts have agreed with the plaintiffs. See Whitley v. Hunt, 158 F.3d 882, 887 (5th Cir.1998); Lunsford v. Jumao-As, 155 F.3d 1178, 1179 (9th Cir.1998); Garrett v. Hawk, 127 F.3d 1263, 1267 (10th Cir.1997). But we think the disposition of this issue is controlled by our recent decision in Alexander v. Hawk, 159 F.3d 1321 (11th Cir.1998). In Alexander, we held that “the judicially recognized futility and inadequacy exceptions do not survive the new mandatory exhaustion requirement of the PLRA.... Since exhaustion is now a precondition to suit, the courts cannot simply waive those requirements where they determine they are futile or inadequate.” Id. at 1325-26. Plaintiffs’ argument in effect asks us either to reconsider Alexander or to limit the case to its facts. We are unable to reconsider Alexander because only the court sitting en banc has the authority to overrule circuit precedent. We decline to limit the case to its facts because we find the general principles of Alexander persuasive. For the reasons stated therein, we reaffirm that section 1997e(a) imposes a mandatory requirement on prisoners seeking judicial relief to exhaust their administrative remedies first. Further, we reaffirm that the term “available” as used in section 1997e(a) does not mean that prison inmates must only exhaust their administrative remedies if the relief they seek is “available” within the administrative apparatus; instead, the term means that a prisoner must exhaust all administrative remedies that are available before filing suit, regardless of their adequacy. See id.; see also, Perez v. Wisconsin Dep’t of Corrections, 182 F.3d 532, 536-37 (7th Cir.1999) (concurring with Alexander on the issue of “available” remedies). C. Even though plaintiff James Wade was still in prison and had exhausted all of his administrative remedies, the district court also dismissed with prejudice Wade’s claims to compensatory and punitive damages because his allegations of physical injury were not serious enough to satisfy the physical injury requirement of section 1997e(e)." }, { "docid": "22801564", "title": "", "text": "administrative complaint, we need not reach the question of whether the pendency of the state lawsuit tolled the prescriptive period. . This court has previously held that the exhaustion requirement under amended section 1997e is not jurisdictional. See Underwood, 151 F.3d at 293-95. \"Rather, the amended statute imposes a requirement, rather like a statute of limitations, that may be subject to certain defenses such as waiver, estoppel, or equitable tolling.” Wendell, 162 F.3d at 890 (citing Underwood, 151 F.3d at 294-95). . The courts of appeals have divided over the question of whether a prisoner seeking solely monetary damages has a duty to exhaust when the state prison system does not provide monetary damages as a remedy. This court and the Ninth and Tenth Circuits do not require exhaustion when monetary damages are sought but such a remedy is unavailable. See Whitley v. Hunt, 158 F.3d at 886; Lunsford v. Jumao-As, 155 F.3d 1178, 1179 (9th Cir.1998); Garrett v. Hawk, 127 F.3d 1263, 1267 (10th Cir.1997). The Sixth, Seventh, and Eleventh Circuits do require exhaustion. See Lavista v. Beeler, 195 F.3d 254, 257 (6th Cir.1999); Perez v. Wisconsin Dep’t of Corrections, 182 F.3d 532, 537 (7th Cir.1999); Alexander v. Hawk, 159 F.3d 1321, 1326-28 (11th Cir.1998). Because Louisiana has provided for monelaty remedies in its administrative review system, the circuit split is not relevant to the disposition of this appeal. . Louisiana courts refer to this suspension of prescription as the doctrine of contra non valentem agere nulla praescriptio. Burge, 996 F.2d at 788." }, { "docid": "22069086", "title": "", "text": "did not attempt to cure his complaint by availing himself of the administrative process; instead, he filed this appeal, raising the argument that exhausting his administrative remedies would be futile. In doing so, he effectively stands on his original complaint. Under either of these circumstances, appellate review from a dismissal without prejudice is appropriate. See Garber v. Lego, 11 F.3d 1197, 1198 n. 1 (3d Cir.1993) (noting that plaintiff can appeal from a dismissal without prejudice when plaintiff cannot cure the defect in his complaint or when plaintiff declares his intention to stand on the complaint); see also Bethel v. McAllister Bros., Inc., 81 F.3d 376, 381 (3d Cir.1996); Trevino-Barton v. Pittsburgh Nat'l Bank, 919 F.2d 874, 878 (3d Cir.1990). . See Whitley v. Hunt, 158 F.3d 882, 887 (5th Cir.1998) (not requiring exhaustion before filing Bivens action requesting monetary damages when exhaustion would be futile because no monetary administrative remedies were available); Lunsford v. Jumao-As, 155 F.3d 1178, 1179 (9th Cir.1998) (same); Garrett v. Hawk, 127 F.3d 1263, 1266-67 (10th Cir.1997) (same; noting that if Congress created an administrative process that could provide monetary relief, the futility exception would not apply); see also Rumbles v. Hill, 182 F.3d 1064, 1068-69 (9th Cir.1999) (applying Luns-ford’s futility exception to a § 1983 action). The Seventh Circuit can likely be included in this list as well. Judge Easterbrook's opinion in Perez v. Wisconsin Dep’t of Corrections, 182 F.3d 532, 538 (7th Cir.1999), a § 1983 action, held that \"pursuit of administrative remedies is necessary no matter what relief the plaintiff seeks.” He noted, however, It is possible to imagine cases in which the harm is done and no further administrative action could supply any \"remedy.” Perhaps Lunsford [cited supra] met that description. Suppose the prisoner breaks his leg and claims delay in setting the bone is cruel and unusual punishment. If the injury has healed by the time suit begins, nothing other than damages could be a “remedy,” and if the administrative process cannot provide compensation then there is no administrative remedy to exhaust. Perez, unlike Lunsford, alleges that his medical problems" }, { "docid": "22069063", "title": "", "text": "petitioning the prison administrative process for a form of relief that it cannot provide. White v. Fauver, 19 F.Supp.2d 305, 317 (D.N.J.1998) (Orlofsky, J.) (“Any other interpretation would compel the conclusion that ‘Congress intended to erect meaningless barriers to suit.’ ”) (citation omitted). These courts, as do others, see infra note 4, also conclude that § 1997e(a) is not a jurisdictional requirement, which by definition cannot be subject to a futility exception. Rather, they hold that § 1997e(a) is a codification within the PLRA of the doctrine of exhaustion of administrative remedies, which before the PLRA was enacted had a futility exception grafted upon it. See, e.g., Rumbles, 182 F.3d at 1067-68. Therefore, they conclude, it is appropriate to apply the futility exception when it is warranted, much in the same way a court would equitably toll a statute of limitations. Two courts of appeals and several district courts have refused to apply a futility exception to § 1997e(a) in light of the way the PLRA amended the section. See, e.g., Wyatt v. Leonard, 193 F.3d 876, 878 (6th Cir.1999); Alexander v. Hawk, 159 F.3d 1321, 1328 (11th Cir.1998); Beeson v. Fishkill Correctional Facility, 28 F.Supp.2d 884, 896 (S.D.N.Y.1998). The amendment replaced the requirement that plaintiff-inmates exhaust “plain, speedy, and effective remedies as are available” with the requirement that inmate-plaintiffs exhaust “such administrative remedies as are available,” These courts reason that the elimination of the words “plain, speedy, and effective” from § 1997e(a) precludes application of a futility exception, and that the word “available” refers to any remedy the prison supplies, rather than one of the prisoner’s choosing. See, e.g., Alexander, 159 F.3d at 1326; Beeson, 28 F.Supp.2d at 893. Nyhuis’s Bivens action is distinguishable from both lines of cases because he requests a mix of remedies, some of which were and some which were not available under the Bureau of Prisons’ administrative process. Nyhuis has requested money damages and declaratory relief, which are not available from the Bureau of Prisons, see 28 C.F.R. § 542.12(b) (1999); see also BOP Program Statement 1330.13, ¶6(b)(1)-(3) (1996) (refusing to consider claims for" }, { "docid": "23266241", "title": "", "text": "effective administrative remedies as are available. (2) The exhaustion of remedies under paragraph (1) may not be required unless the Attorney General has certified or the court has determined that such administrative remedies, are in substantial compliance with the minimum acceptable standards promulgated under subsection (b) of this section or are otherwise fair and effective. 42 U.S.C. § 1997e(a) (1994) (amended 1996). . The amended version of § 1997e(a) reads as follows: § 1997e. Suits by prisoners (a) Applicability of administrative remedies No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. ■ 42 U.S.C. §. 1997e(a) (Supp.2000) (as amended by PLRA § 803). . Since we conclude that Nussle is not obligated to exhaust 'administrative remedies based on the subject matter of his complaint, we need not address his additional contention that since the DOC .administrative grievance procedures make no provision for the award of monetary relief, he is not subject to the exhaustion requirement because there is no administrative remedy \"available” to him. We note, however, that other circuits have divided over this issue. Compare Nyhuis v. Reno, 204 F.3d 65 (3d Cir.2000) (exhaustion required); Massey v. Helman, 196 F.3d 727 (7th Cir.1999) (same), petition for cert, filed, No. 99-1918 (May 30, 2000); Wyatt v. Leonard, 193 F.3d 876 (6th Cir.1999) (same); and Alexander v. Hawk, 159 F.3d 1321 (11th Cir.1998) (same), with Rumbles v. Hill, 182 F.3d 1064 (9th Cir.1999) (exhaustion not required), cert. denied, -U.S. - — •, 120 S.Ct. 787, 145 L.Ed.2d 664 (2000); Whitley v. Hunt, 158 F.3d 882 (5th Cir.1998) (same); and Garrett v. Hawk, 127 F.3d 1263 (10th Cir.1997) (same). Cf. Perez v. Wisconsin Dep't of Corrections, 182. F.3d 532, 538 (7th Cir.1999) (Easter-brook, J.) (“It is possible to imagine cases in which the harm is done and no further administrative action could supply any ‘remedy.’ ”). ' ' . In addition, the Fifth and Tenth Circuits have required exhaustion" }, { "docid": "23266242", "title": "", "text": "the award of monetary relief, he is not subject to the exhaustion requirement because there is no administrative remedy \"available” to him. We note, however, that other circuits have divided over this issue. Compare Nyhuis v. Reno, 204 F.3d 65 (3d Cir.2000) (exhaustion required); Massey v. Helman, 196 F.3d 727 (7th Cir.1999) (same), petition for cert, filed, No. 99-1918 (May 30, 2000); Wyatt v. Leonard, 193 F.3d 876 (6th Cir.1999) (same); and Alexander v. Hawk, 159 F.3d 1321 (11th Cir.1998) (same), with Rumbles v. Hill, 182 F.3d 1064 (9th Cir.1999) (exhaustion not required), cert. denied, -U.S. - — •, 120 S.Ct. 787, 145 L.Ed.2d 664 (2000); Whitley v. Hunt, 158 F.3d 882 (5th Cir.1998) (same); and Garrett v. Hawk, 127 F.3d 1263 (10th Cir.1997) (same). Cf. Perez v. Wisconsin Dep't of Corrections, 182. F.3d 532, 538 (7th Cir.1999) (Easter-brook, J.) (“It is possible to imagine cases in which the harm is done and no further administrative action could supply any ‘remedy.’ ”). ' ' . In addition, the Fifth and Tenth Circuits have required exhaustion in cases involving excessive force, but without explicitly considering whether such claims properly fall within the § 1997e(a) requirement. See Wendell v. Asher, 162 F.3d 887, 890-91 (5th Cir.1998); Garrett v. Hawk, 127 F.3d 1263, 1264-66 (10th Cir.1997). . As Judge Noonan observes, the only other variant to this definition of \"conditions” that is relevant to the term's usage in this statute— \"something needing remedy” (as used in the sentence, \"Trains were late to New York because of conditions in New Jersey”) — suggests the same connotation. Webster's Third International Dictionary, supra, at 473; Booth, 206 F.3d at 301 (Noonan, J., concurring and dissenting). . Title 18, section 3626(g)(2) of the United States Code provides: (g) Definitions. — As used in this section— (2) the term \"civil action with respect to prison conditions” means any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or" }, { "docid": "22355119", "title": "", "text": "the federal prisoner seeks damages. Whitley v. Hunt, 158 F.3d 882 (5th Cir.1998); Garrett v. Hawk, 127 F.3d 1263 (10th Cir.1997). On the other hand, the Eleventh Circuit has held that even where the federal prison system denies review in such money damages cases, the federal prisoner must still attempt to have his complaint reviewed. Alexander v. Hawk, 159 F.3d 1321, 1325 (11th Cir.1998). Although it makes sense to excuse exhaustion of the prisoner’s complaint where the prison system has a flat rule declining jurisdiction over such cases, it does not make sense to excuse the failure to exhaust when the prison system will hear the case and attempt to correct legitimate complaints by providing some remedy, even though it will not pay damages. In Perez v. Wisconsin Dep’t of Corrections, 182 F.3d 532 (7th Cir.1999), the Seventh Circuit made this distinction in a state prisoner medical case. It held a prisoner must exhaust in a money damages case unless administrative action could provide no remedy of any kind. In Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.), cert. denied, — U.S. —, 119 S.Ct. 88, 142 L.Ed.2d 69 (1998), we held that “prisoners filing § 1983 cases involving prison conditions must allege and show that they have exhausted all available state administrative remedies. A prisoner should attach to his § 1983 complaint the administrative decision, if it is available, showing the administrative disposition of his complaint.” In the present case the prisoner has attempted to show that he has exhausted the Ohio prison’s administrative process. So long as the prison system has an administrative process that will review a prisoner’s complaint even when the prisoner seeks monetary damages, the prisoner must exhaust his prison remedies. The prisoner must do so for the following three reasons: 1. Prisoners could easily avoid the administrative process in prison condition cases by the simple expedient of asking for damages, a loophole the 1996 Act does not appear to allow. A purpose of the Act was to insure that prisons have notice of complaints and are given the opportunity to respond to prisoner" }, { "docid": "22277674", "title": "", "text": "title, or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a) (emphasis added). Booth reads this language to mean that he did not need to take advantage of the Inmate Grievance System’s administrative procedures because they could not provide him with the monetary relief that he sought in his federal action. For this proposition he cites, among other cases, Whitley v. Hunt, 158 F.3d 882 (5th Cir.1998), Lunsford v. Jumao-As, 155 F.3d 1178 (9th Cir.1998), and Garrett v. Hawk, 127 F.3d 1263 (10th Cir.1997). These cases hold that when a prison’s internal grievance procedure cannot provide an inmate-plaintiff with the pure money damages relief he seeks in his federal action, exhaustion of those administrative remedies would be futile. Our recent opinion in Nyhuis v. Reno, 204 F.3d 65, 72 (3d Cir.2000), rejected the narrow futility exception recognized in Whitley, Lunsford, and Garrett; and the rule announced in Nyhuis is dispositive in this case. In Nyhuis, we held that “the PLRA amended § 1997e(a) in such a way as to make exhaustion of all administrative remedies mandatory — whether or not they provide the inmate-plaintiff with the relief he says he desires in his federal action.” Id. at 67. In a lengthy opinion, we detailed the many arguments supporting our position, and ultimately rejected the approach taken by courts recognizing the futility exception. See id. at 71-78. Although Nyhuis involved a Bivens action brought by a federal inmate, the rule we announced in Nyhuis has equal force in the § 1983 context, for § 1997e(a), which applies to actions brought by a prisoner “under section 1983 of this title, or any other federal law,” treats Bivens actions and § 1983 actions as functional equivalents. See Nyhuis, 204 F.3d at 68; Lavista v. Beeler, 195 F.3d 254, 256 (6th Cir.1999); Alexander v. Hawk, 159 F.3d 1321, 1324-25 (11th Cir.1998); Garrett v. Hawk, 127 F.3d 1263, 1264-66 (10th Cir.1997). Indeed, the Nyhuis rule has even greater force with respect to § 1983 actions." }, { "docid": "23573066", "title": "", "text": "case on appeal is governed by our decision in Lunsford v. Jumao-As, 155 F.3d 1178 (9th Cir.1998). In Lunsford, we were reviewing the claim of a federal prisoner “seeking] only damages in his [Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ] action for claims arising from past conduct by prison officials.... ” 155 F.3d at 1179. We held that “Lunsford was ... not required to exhaust his administrative remedies before filing this lawsuit in the district court in light of the fact that the [Bureau of Prison’s] Administrative Remedy Program only provides for injunctive relief.” Id. The holding in Lunsford amounts to a rule that federal prisoners pressing Bivens claims need not pursue prison remedies when they are seeking exclusively monetary relief, and there are no prison remedies capable of affording such relief. In this regard, Lunsford is consistent with pre-PLRA law. See McCarthy, 503 U.S. at 149, 112 S.Ct. 1081 (prisoner need not exhaust administrative remedies before pursuing Bivens claim for damages); Cooney v. Edwards, 971 F.2d 345, 346 (9th Cir.1992) (same). The district court in the instant case simply extended Lunsford’s reasoning from a Bivens action to Rumbles’ section 1983 action, and held that Rumbles need not exhaust the CDC grievance process because it does not provide for monetary relief. Extending Lwnsfard from a Bivens action to a section 1983 action is logical. “Actions under § 1983 and those under Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir.1991). More importantly, in the PLRA Congress included prisoner Bivens actions within the statutory reach of section 1997e(a). See Garrett, 127 F,3d at 1265 (“Because § 1997e pertains to ‘any action brought ... under ... any [ ] Federal law, by a prisoner confined in any jail, prison or other correctional facility,’ the exhaustion requirements now apply to Bivens suits brought by federal prisoners against federal officials as well.”) (emphasis and alterations in original); Alexander, 159 F.3d at 1325 (“Congress" }, { "docid": "17356046", "title": "", "text": "in section 1997e(a), dealing with administrative exhaustion, as not applying to former prisoners no longer incarcerated); Doe v. Washington County, 150 F.3d 920, 924 (8th Cir.1998) (interpreting “prisoner” as used in section 1997e(d), dealing with attorneys’ fees, as not applying to former prisoners). B. The district court dismissed without prejudice two categories of plaintiffs because they failed to exhaust their administrative remedies before bringing suit and thus failed to satisfy the exhaustion requirement of section 1997e(a). That section provides: “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” Plaintiffs make a valiant argument that they should not be required to exhaust their administrative remedies before being allowed to proceed in court because (1) the GDC’s treatment of similar claims demonstrates that it would be futile for plaintiffs to pursue administrative relief, and (2) no administrative relief is “available” to plaintiffs because the GDC Inmate Grievance Procedures do not provide for the monetary damages award plaintiffs seek. At least with regard to the issue of what remedies are “available” under section 1997e(a), some courts have agreed with the plaintiffs. See Whitley v. Hunt, 158 F.3d 882, 887 (5th Cir.1998); Lunsford v. Jumao-As, 155 F.3d 1178, 1179 (9th Cir.1998); Garrett v. Hawk, 127 F.3d 1263, 1267 (10th Cir.1997). But we think the disposition of this issue is controlled by our recent decision in Alexander v. Hawk, 159 F.3d 1321 (11th Cir.1998). In Alexander, we held that “the judicially recognized futility and inadequacy exceptions do not survive the new mandatory exhaustion requirement of the PLRA.... Since exhaustion is now a precondition to suit, the courts cannot simply waive those requirements where they determine they are futile or inadequate.” Id. at 1325-26. Plaintiffs’ argument in effect asks us either to reconsider Alexander or to limit the case to its facts. We are unable to reconsider Alexander because only the court sitting en banc has the authority to overrule circuit precedent. We" }, { "docid": "23573064", "title": "", "text": "those that are “frivolous, malicious, fail[ ] to state a claim ..., or seek[ ] monetary relief from a defendant who is immune from such relief.” 42 U.S.C. § 1997e(c)(l). The statute specifically permits district courts to dismiss such claims on the merits even where administrative remedies have not been exhausted. See id. § 1997e(c)(2). “The court would not be empowered to do so if the exhaustion provision deprived the court of jurisdiction over the action.” Underwood, 151 F.3d at 295; see Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981) (a court has no power to reach the merits of a claim if it lacks jurisdiction); see generally In re Burns, 974 F.2d 1064, 1066 (9th Cir.1992) (a court should avoid a statutory interpretation that “fails to give effect to every subsection” of a law). In short, section 1997e(a) is not jurisdictional. B. Even if exhaustion is not jurisdictional under the PLRA, Hill argues that a prisoner seeking monetary relief must nevertheless exhaust administrative remedies even where monetary relief is not available within the prison grievance system. Because the California Department of Corrections (“CDC”) grievance procedures do not allow for monetary damage awards, see Lacey, 990 F.Supp. at 1205 (“[CDC] grievance process does not provide for monetary relief’), the question is whether those procedures are an “available remedy” where a prisoner seeks only monetary damages. Authorities are split. See Beeson v. Fishkill Correctional Facility, 28 F.Supp.2d 884, 888 (S.D.N.Y.1998) (federal courts “have differed ... about whether to apply § 1997e(a) where plaintiffs seek money damages and such relief is not ‘available’ through the administrative process”) (collecting cases). Compare, e.g., Garrett v. Hawk, 127 F.3d 1263, 1266 (10th Cir.1997) (section 1997e(a)’s exhaustion requirement applies only to the extent that the administrative process could provide the relief sought), and Whitley v. Hunt, 158 F.3d 882, 886-87 (5th Cir.1998) (same), with Alexander v. Hawk, 159 F.3d 1321, 1326 (11th Cir.1998) (exhaustion mandatory even where the administrative process does not provide the requested relief; “available remedy” does not mean “adequate remedy”). Ultimately, however, the" }, { "docid": "14915020", "title": "", "text": "Bivens claim seeking both injunctive and monetary relief, like plaintiff here, exhaustion through the Bureau of Prison’s grievance procedure is required for at least those claims seeking nonmonetary relief. Rumbles v. Hill, 182 F.3d 1064 (9th Cir.1999) (extending reasoning in prior Bivens action to § 1983 suit by state prisoner); Alexander v. Hawk, 159 F.3d 1321, 1325 (11th Cir.1998); Whitley v. Hunt, 158 F.3d 882, 886 (1998); Garrett v. Hawk, 127 F.3d 1263, 1265 (10th Cir.1997). There is a split in the circuits regarding whether a federal prisoner seeking only monetary damages must exhaust administrative remedies before filing a Bivens action in federal court. Three circuits have held in Bivens-type actions by federal prisoners that exhaustion in money damages cases is unnecessary because federal prison regulations do not allow for administrative review at all if the federal prisoner seeks damages. Whitley v. Hunt, 158 F.3d 882 (5th Cir.1998); Lunsford v. Jumao-As, 155 F.3d 1178 (9th Cir.1998); Garrett v. Hawk, 127 F.3d 1263 (10th Cir.1997). In contrast, the Eleventh Circuit has held that even where the federal prison system denies review in such money damages cases, the federal prisoner must still attempt to have his complaint reviewed. Alexander v. Hawk, 159 F.3d 1321, 1325 (11th Cir.1998); see also Perez v. Wisconsin Dep’t of Corrections, 182 F.3d 532, 535 (7th Cir.1999) (state prisoner seeking only monetary damages, which state system does not provide, must exhaust administrative remedies). Although it may make sense to excuse exhaustion of the prisoner’s complaint where the prison system has a flat rule declining jurisdiction over such cases, it does not make sense to excuse the failure to exhaust when the prison system will hear the case and attempt to correct legitimate complaints, even though it will not pay damages. Wyatt v. Leonard, 193 F.3d 876, 878-79 (6th Cir.1999). Here, because plaintiff seeks injunctive and declaratory relief, as well as monetary damages, he may be successful in having the Bureau of Prisons at least review its policies and procedures concerning disabled persons at their facilities. If so, presenting his claims to the Bureau of Prisons first would not" }, { "docid": "22088078", "title": "", "text": "administrative process turns out? The version of § 1997e(a) that predated the PLRA permitted a court to “continue such case for a period of not to exceed 180 days in order to require exhaustion of such plain, speedy, and effective administrative remedies as are available.” In 1996 Congress deleted the requirement that the administrative remedy be “plain, speedy, and effective”, and when these words left the statute so did any warrant to inquire whether exhaustion would be unavailing. Thus we agree once again with the eleventh circuit in Alexander, 159 F.3d at 1325-27: There is no futility exception to § 1997e(a). (Notice, by the way, that the difference between the pre-1996 version of § 1997e(a), which allowed a judge to “continue” the suit, and the plra version, which makes exhaustion a precondition to suit, also supports our principal conclusion that a case filed before exhaustion has been accomplished must be dismissed.) A second and related contention is that no administrative “remedies” are “available” because Perez wants only money damages, which Wisconsin’s administrative process cannot provide. Let us suppose that Wisconsin never offers financial compensation to a prisoner (though we can’t see any rule that prevents it, and cases such as West v. Gibson, — U.S. -, 119 S.Ct. 1906, 144 L.Ed.2d 196 (1999), show that some agencies, at least, award compensatory damages). Still, the statutory question is whether any “remedies” are “available”; § 1997e(a) does not require the prison to use the prisoner’s preferred remedy. Alexander holds that a prisoner cannot avoid § 1997e(a) just by limiting his demand in court to money, see 159 F.3d at 1326-28, and on this issue too we agree with the eleventh circuit — though several courts of appeals have gone the other way. See Whitley v. Hunt, 158 F.3d 882, 887 (5th Cir.1998); Lunsford v. Jumao-As, 155 F.3d 1178 (9th Cir.1998); Garrett v. Hawk, 127 F.3d 1263, 1267 (10th Cir.1997). Courts that treat suits for money damages as unaffected by § 1997e(a) rely on McCarthy v. Madigan, 503 U.S. 140, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992). Until the plra, there was no" }, { "docid": "14915019", "title": "", "text": "1081, 117 L.Ed.2d 291 (1992), is no longer controlling in light of the exhaustion requirement in § 1997e(a) as amended. McCarthy held that federal prisoners bringing a Bivens action that sought only money damages were not required to exhaust the Bureau of Prisons grievance procedure. McCarthy withheld ruling on whether exhaustion would be required where a federal prisoner sought injunctive or other relief, in addition to monetary relief, like the plaintiff herein. Finally, McCarthy recognized that when Congress specifically mandates exhaustion, it is required and the courts may not excuse the requirement. With the passage of the Reform Act, Congress has now specifically mandated the exhaustion of remedies through the prison grievance system. Even before passage of the Reform Act, this Court held that federal prisoners seeking injunctive relief must exhaust administrative remedies before coming to federal court, even if the prisoner also asserts a claim for monetary damages. Davis v. Keohane, 835 F.2d 1147, 1148 (6th Cir.1987). Every circuit court that has addressed the issue has held that if a federal prisoner asserts a Bivens claim seeking both injunctive and monetary relief, like plaintiff here, exhaustion through the Bureau of Prison’s grievance procedure is required for at least those claims seeking nonmonetary relief. Rumbles v. Hill, 182 F.3d 1064 (9th Cir.1999) (extending reasoning in prior Bivens action to § 1983 suit by state prisoner); Alexander v. Hawk, 159 F.3d 1321, 1325 (11th Cir.1998); Whitley v. Hunt, 158 F.3d 882, 886 (1998); Garrett v. Hawk, 127 F.3d 1263, 1265 (10th Cir.1997). There is a split in the circuits regarding whether a federal prisoner seeking only monetary damages must exhaust administrative remedies before filing a Bivens action in federal court. Three circuits have held in Bivens-type actions by federal prisoners that exhaustion in money damages cases is unnecessary because federal prison regulations do not allow for administrative review at all if the federal prisoner seeks damages. Whitley v. Hunt, 158 F.3d 882 (5th Cir.1998); Lunsford v. Jumao-As, 155 F.3d 1178 (9th Cir.1998); Garrett v. Hawk, 127 F.3d 1263 (10th Cir.1997). In contrast, the Eleventh Circuit has held that even where the" } ]

[ { "docid": "1872118", "title": "", "text": "uniformed services shall be entitled to receive travel and transportation allowances for travel performed or to be performed under competent orders (1) upon a change of permanent station, or otherwise, or when away from their designated post of duty regardless of the length of time away from such designated post of duty * * *. The respective Secretaries concerned may prescribe (1) the conditions under which travel and transportation allowances shall be authorized, including advance payment thereof, and (2) the allowances for types. of travel not to exceed amounts herein authorized.” Pursuant to the authority therein given, valid Joint Travel Regulations were issued by the Secretaries of the Armed Services. We are of opinion that plaintiffs are not entitled to recover under these travel regulations. JTR 3050, in section 1, provides that “Members are entitled to travel and transportation allowances as authorized in accordance with existing regulations, only while actually in a ‘travel status’. They shall be deemed to be in a travel status while performing travel away from their permanent duty station, upon public business * * [Italics ours.] Section 2 thereof provides that “ ‘travel status’ * * * will commence with departure from permanent duty station or ship, and will include * * * travel from one permanent duty station to another permanent duty station.” When plaintiffs received their orders to report to the Officers Candidate School, they were at their homes, having just enlisted. At that time they had no “permanent duty station.” Their first duty station was the Officers Candidate School. They were entitled to per diem allowance while they were traveling from their homes in Brooklyn, New York, and Lanikai, Oahu, T.H., respectively, to Newport, Rhode Island, but after arrival at Newport they were not entitled to per diem allowance, because they were not away from their “permanent duty station.” They had no duty station other than the Officers Candidate School. Personnel are entitled to per diem allowance while away from their “permanent duty station”, and at a temporary station, to reimburse them for the additional expense of maintaining quarters at their permanent station" } ]

[ { "docid": "21740144", "title": "", "text": "the government argued that 5 U.S.C. § 5942 applies “only to instances where an employee’s daily commute to and from his work-site results in hardship.” (Gov’t Opp’n at 19.) The Court of Federal Claims granted summary judgment for the government, holding that the agency’s “system of successive transfers upon completion of projects was a permissible personnel practice which does not produce liability for per diem payments.” Agwiak, slip op. at 4. With respect to remote duty pay, the court held that, “[a]s plaintiffs’ duty stations were their remote worksites, commuting, as such, did not occur, and no basis for liability pursuant to 5 U.S.C. § 5942 has been established.” Id. The plaintiffs timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). DISCUSSION We review the Court of Federal Claims’ grant of summary judgment without deference. Scott Timber Co. v. United States, 333 F.3d 1358, 1365 (Fed.Cir.2003). I This case presents two issues. The first of these is whether the Court of Federal Claims properly held that the plaintiffs were not entitled to per diem compensation because each of the duty stations to which they were assigned was a permanent duty station. In this respect, we agree with the Court of Federal Claims. The statute that authorizes per diem payments provides, in relevant part: Under regulations prescribed pursuant to section 5707 of this title, an employee, when traveling on official business away from the employee’s designated post of duty ... is entitled to ... a per diem allowance.... 5 U.S.C. § 5702(a)(1) (2000). “The purpose of per diem is to reimburse an employee for meals and lodging while on temporary duty while he also maintains a residence at his permanent duty station.” Matter of: Frederick C. Welch, 62 Comp. Gen. 80, 84 (1982). It is not contested that the agency successively changed the plaintiffs’ permanent duty stations each time they were assigned to a new work area. The plaintiffs contend, however (as best we understand it), that if an employee is assigned to a duty station for a short period of time here periods ranging from a few weeks" }, { "docid": "479970", "title": "", "text": "during the discovery proceedings, but the Steering Committee itself contends that he was actually a consultant. Because the Court has determined that it will award fees on a lodestar basis, and thus fix each fee individually, it is not necessary to determine whether Dr. Shapiro was or was not properly a member of the committee. The fee for Dr. Shapiro is discussed at pages 706-707, infra. . In making this fee award, the Court will rely on the Steering Committee’s statement of hours worked which is contained in its answers to interrogatories filed on February 2, 1981, the day of the evidentiary hearing. This appears to be the most complete record available, although it must be noted that the figures differ in some respects from records previously presented by the Steering Committee. . Although several cases have applied or suggested use of varying rates of pay for varying tasks, see, e. g., Copeland v. Marshall, supra, at 891-892; In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, 410 F.Supp. 680 (D.Minn.1975), the Court has chosen to use a single hourly rate in computing the lodestar, making no allowance for the nature of the work performed. The Steering Committee work was a team effort; furthermore, the manner in which time charges were recorded and the wide variety of tasks performed make it impractical to establish separate rates for each task. By distinguishing between associate and partners—although the Court is mindful that this distinction is not the same in every firm— some effort has been made to account for the differing skills required for the various tasks undertaken. Adjustments, to some extent, also are provided for by special awards that the Court will grant to several individuals for their outstanding work. . See footnote 19, supra. . One indication of the professionalism of the Committee was its approach to expenses by Committee members. Stringent standards were established at an early stage limiting reimbursable expenses to $70 per diem for lodging, $25 per diem for meals, coach air fare, and actual documented costs for other expenses, including law clerks and paralegals. These standards" }, { "docid": "21740145", "title": "", "text": "diem compensation because each of the duty stations to which they were assigned was a permanent duty station. In this respect, we agree with the Court of Federal Claims. The statute that authorizes per diem payments provides, in relevant part: Under regulations prescribed pursuant to section 5707 of this title, an employee, when traveling on official business away from the employee’s designated post of duty ... is entitled to ... a per diem allowance.... 5 U.S.C. § 5702(a)(1) (2000). “The purpose of per diem is to reimburse an employee for meals and lodging while on temporary duty while he also maintains a residence at his permanent duty station.” Matter of: Frederick C. Welch, 62 Comp. Gen. 80, 84 (1982). It is not contested that the agency successively changed the plaintiffs’ permanent duty stations each time they were assigned to a new work area. The plaintiffs contend, however (as best we understand it), that if an employee is assigned to a duty station for a short period of time here periods ranging from a few weeks to more than a year (1) that station cannot be a permanent duty station; (2) the agency must designate some other place as the permanent duty station; and (3) per diem compensation must be paid while the employee is away from that permanent duty station. In this respect, plaintiffs rely on a decision by the Comptroller General in Comptroller General Warren to the National Housing Administration, 23 Comp. Gen. 162 (1943) (“Warren”). In Warren, the Comptroller General concluded that, because it is necessary “to designate some place as the headquarters or official station of itinerant employees,” the “official station” for itinerant employees ordinarily should be the “central place from which their orders emanate and to which their reports go for consideration and on the basis of which administration action is taken.” Id. at 164. That decision is of course not binding on us, see Cherokee Nation of Okla., 334 F.3d at 1084, and it is distinguishable in any event. In Warren, the itinerant employees were “expected to travel continuously” within a region to which they" }, { "docid": "4873047", "title": "", "text": "to Bill of Costs). Baisden does not dispute that Arnold appeared in Dallas, Texas, for a deposition in April of 2010, or argue that the airline ticket charge and/or baggage fees and/or taxi fares sought were unreasonable or unnecessary. Accordingly, the court concludes that the trial counsel’s declaration presents sufficient evidence to meet the verification requirements of section 1821(c)(1), and that the $290.00 sought for Arnold’s air travel from Los Angeles, California, to Dallas, Texas, and the $61.00 sought for Arnold’s taxi fares were reasonable. However, since the costs that defendants seek for Arnold’s overnight stays exceed the maximum per diem rates for lodging and for meals and incidental expenses allowed for Dallas, Texas, during April of 2010, the court concludes that the defendants are not entitled to recover the entire amount sought for Arnold’s subsistence but, instead, may only recover $117.00 per night for lodging and $58.25 for meals and incidental expenses for her first and last days of travel (April 25 and 28), and $71 for meals and incidental expenses for April 26 and 27. See United Teacher Associates, 414 F.3d at 575 & n. 12 (“28 U.S.C. § 1821(d)(2) does not, however, permit the award of ‘actual costs,’ but limits such awards to the per diem rate.”). The total taxable cost for Arnold’s deposition appearance is $950.50 consisting of (1) $290.00 for airfare and baggage fees, (2) $599.50 for subsistence, and (3) $61.00 for taxi fares. (b) Arnold’s Trial Appearance Defendants seek $2,404.69 for Arnold’s trial appearance from February 23 to 25, 2011. This amount consists of: (1) $1,784.80 airfare from Los Angeles, California, to Houston, Texas; (2) $429.58 hotel and meals, (3) $115.50 taxi fares, and (4) $74.81 meals. The invoice attached to defendants’ Bill of Costs that reflects costs being sought for Arnold’s trial appearance is dated March 7, 2011, and includes the following expenses: Original Airline tix SEA-HOUSTON $ 320.00 2nd Airline tix LAX-HOUSTON 1,463.90 Hotel and Hotel Meals Houston 429.58 Meals 67.36 Meals 7.45 Taxi Houston Airport to Hotel 57.50 Taxi Hotel to Houston Airport 58.00 There are no dates for when these" }, { "docid": "7652035", "title": "", "text": "order requiring counsel to submit a detailed documentation of the number of flights undertaken, destination, cost per flight, necessity of the trip, as well as cost for meals and hotel accommodations. Although this Court recommends granting travel reimbursement expenses, it is the opinion of this Court that the total amount of reimbursement requested be reduced to reflect the per diem travel expenses ordinarily reimbursed to all federal government employees, including judiciary personnel and United States government attorneys, for business-related travel. The federal government guidelines are outlined in the Administrative Manual, Guide To Judiciary Policies And Procedure, Volume III, Chapter VI, Section 7, rates effective as of January 1,1995. Under the above guidelines, the per diem locality rate for San Francisco is $137.00. A traveler may elect to claim reimbursement on an actual expense basis in lieu of claiming reimbursement on a per diem basis. Reimbursement is for the actual and necessary expenses the traveler incurs, not to exceed 150% of the maximum per diem rate, or $205.50 for the San Francisco locality. This Court recommends setting the limit for plaintiffs’ counsel’s travel reimbursement at the rate of the traveler’s actual expenses, not to exceed the $205.50 per diem locality rate for San Francisco. The per diem allowance includes all reasonable charges for meals, lodging, laundry, cleaning and pressing of clothes, tips, as well as transportation between places of lodging or business and places where meals are taken. Pursuant to the guidelines, this Court recommends applying the M & IE (meals and incidental expenses) rate applies for all actual travel expenses, not to exceed $34.00 per diem, when a lodging charge was not incurred. As for the future, a way for plaintiffs’ counsel to meet the “reasonable and necessary” standard is by making a serious effort to assign work in such a manner as to minimize the need for extensive travel. When travel does become “necessary”, counsel should ensure that the airfare and hotel accommodations are charged at tourist or economy rates. If counsel anticipates the need for extensive travel, a clearance from the Court should be obtained prior to incurring" }, { "docid": "7242252", "title": "", "text": "425 550 275 No. 6._ 350 450 200 Less than month will be daily rate of one-thirtieth of monthly rate. (Above Rates Include Tips) Bisbt Lodge * Meals $7.25 pear day Breakfast, $1.50 Luncheon, $2.25 Dinner, $3.50 Club dining room open about July 1 through Labor Day Lodging — American Plan Only July 1 through Labor Day Rooms — with Meals: Single Room, — $15.00 per day, $100 per week Double Room — $26.50 per day, $175 per week Club Cottage (American plan only): Wigwam — Living room with fireplace, porch, 2 bedrooms, bath and kitchenette. Sylvan Lodge — Living room, porch, 2 bedrooms and bath. The Shack — One room and bath. July August September The Shaek___ $200 $250 $165 Sylvan Lodge. 360 440 275 The Wigwam. 410 490 325 To the above cottage schedule, add $7.25 per person per day for meals for those occupying The Shack and Sylvan Lodge. Those occupying the Wigwam may (at their option) take all meals at Ithe Clubhouse, in which event the charges for the cottage and board will be the same as the charges for Sylvan Lodge; or they may take only two meals per day at the Clubhouse, in which event the cottage rent will be as per above schedule plus $5.75 per person per day for meals. Except as above stated for occupants of the Wigwam, no credit will be allowed any lodger for absence from meals. A cottage will not be rented for a period of less than one week. If taken by the week,the rent will be 25% of the rates shown in the schedule for the month plus the regular charges for meals. For children’s rates, please see the Lodge Manager. Spring Rates — Room Only — $6.00 per person per day. These raJtes apply until Club dining room opens. Bisby Road Tolls To and from Bisby Passenger Tolls: For one person each way_$0. 50 Maximum per car each way_$1. 00 $15 Single Trip Coupons_$5.00 Maximum ticket per trip_ two Truck Tolls.— (To and From Bisby or Woodhull — driver included) Empty Loaded 1 ton capacity_" }, { "docid": "18936948", "title": "", "text": "those allowances as personal service compensation. We adopt that characterization. We conclude by noting that the parties are currently litigating in the U.S. Court of Federal Claims the issue of whether the very same per diem allowances are wages for employment tax purposes. See United Air Lines, Inc. v. United States, No. 97-173T (Fed. Cl., filed Mar. 18, 1997). Interestingly, the Government is arguing that those allowances are wages for employment tax purposes. Wages for employment tax purposes are “all remuneration for employment, including the cash value of all remuneration (including benefits) paid in any medium other than cash”. Sec. 3121(a). Section 3401 defines wages in similar terms. We hold that United may deduct the per diem allowances under section 162(a)(1) as personal service compensation. Accordingly, Decision will be entered under Rule 155. Reviewed by the Court. Wells, Chabot, Gerber, Ruwe, Halpern, Foley, Vasquez, and Gale, JJ., agree with this majority opinion. Whalen, J., concurs. Respondent has determined no deficiency for 1985 because the limitations period was closed when the underlying notice of deficiency was issued. We discuss 1985 because petitioner’s deduction of the per diem allowances for that year affects petitioner’s tax liability for the subject years. Section references are to the Internal Revenue Code in effect for the subject years. Rule references are to the Tax Court Rules of Practice and Procedure. Moreover, as the Supreme Court noted in upholding our decision in that case, the meal allowance given to Kowalski by way of the cash payments was of a “presumptively compensatory nature”. Kowalski v. Commissioner, 434 U.S. 77, 94 (1977). Ruwe, J., concurring: I agree with the result in this case. However, I believe it is appropriate to elaborate on why the per diem allowances for day trips and overnight trips are both deductible as compensation under section 162(a)(1). United paid its employees per diem allowances at a rate of $1.50 per hour ($1.55 for pilots for certain portions of the years in issue) for the number of hours on duty or on flight assignment. United appears to have arrived at this number by estimating the expenses" }, { "docid": "22298178", "title": "", "text": "the sums appropriated for the fulfilment gf those objects severally, comprising those of the military academy; also the superintendence of the execution of the acts of Congress, in relation-to internal improvement, by roads, canals, the navigation of rivers, and the repairs' and improvements connected with the harbours of. the United States, or the entrance into the same, which may be authorized by acts of Congress, with the éxecution of which the War Department may be charged.” 893. “ The engineer superintending the construction of a fortification, will disburse the moneys applied to the samé, and .as compensation for the performance of that extra duty, will be allowed at the rate of two dollars per diem during the continuance- of such disbursements, provided the whole .amount of emolument shall not exceed two and a half per cent, on the sum disbursed.” So. far as the present item is concerned, these regulations do not differ in substance. They both raise the question as to the proper interpretation of them whether the allowance of two dollars per diem, not exceeding two and a half per cent., is intended to be limited to a single per diem allowance; notwithstanding the engineer superintending the construction, and disbursing the moneys, as agent for fortifications, is employed at the time upon’ several. fortifications, each requiring separate accounts of the disbursements to be kept, on.account of there being-distinct and independent appropriations therefor; or whether the per diem allowance is.cumulative, that is to say, two dollars a day for every fortification, for which there is a distinct and independent appropriation, of which separate accounts are required to be kept, and the disbursements are confided to one and the same engineer, as superintendent and agent of disbursements. The Court are of opinion that the latter is the true construction of the Regulations; upon the ground, that it would be unreasonable to suppose that these Regulations intended to give the same exact amount of compensation to a person disbursing moneys upon two or more distinct fortifications, that he would he entitled to if he were disbursing agent for one only, although" }, { "docid": "21234895", "title": "", "text": "to plaintiffs’ argument is that the agency delegated the authority for promulgating and interpreting the JTRs is presumed to have carried out such responsibilities properly. Thorpe v. Housing Authority, 393 U.S. 268, 276 (1969); Barrington Manor Apts. Corp. v. United States, 198 Ct. Cl. 298, 304, 459 F. 2d 499, 502-03 (1972); Ganse v. United States, 180 Ct. Cl. 183, 189, 376 F. 2d 900, 904 (1967). Plaintiffs, by merely pointing out slightly confusing subsection labels, have shown nothing which significantly rebuts the presumption of correct interpretation. To summarize, we hold 5 U.S.C. § 5911(e) is inapplicable to plaintiffs’ situation because the statute, on its face, is not directed at quarters provided free of charge. Additionally, it is determined that plaintiffs have failed to meet their burden of proving any abuse of DOD discretion, either in changing its per diem practices effective July 1, 1970, or in the subsequent modification of the practice after December 15, 1970 (particularly since this modification accrued to the benefit of plaintiffs). Finally, we reject plaintiffs’ assertion that the regulations applied were technically defective and hold defendant has properly interpreted and applied its own regulations. Therefore, we conclude plaintiffs are not entitled to the moneys sought, either for the first three days denied after July 1, 1970 or for any other days denied between July 1, 1970 and December 15,1970. Accordingly, plaintiffs’ motion for summary judgment is denied, defendant’s cross-motion is granted, and the petition is dismissed. On October 1, 1971, Joint Travel Regulation (JTR) par. C8101-3b(6) was amended to reflect the Interpretation of the regulations made by Comptroller General Decision No. B-170655. U.S.C. § 5911(a) defines quarters as follows; “quarters owned or leased by the Government.” See note 1, supra. DOD’s discretion in establishing per diem rates for various travel or temporary duty stations is not disputed. 6 U.S.C. § 5702 is the statutory basis under -which Federal employees are entitled to per diem allowances. In pertinent part, it states: “An employee, while traveling on official business away from his designated post of duty, is entitled to a per diem allowance prescribed by the" }, { "docid": "9897580", "title": "", "text": "Unless otherwise indicated, all section references are to the Internal Revenue Code in effect during the years at issue. . Revenue Procedure 90-60 § 4.03 provides in relevant part: \"In lieu of using actual expenses, employees and self-employed individuals, in computing the amount allowable as a deduction for ordinary and necessary meal and incidental expenses paid or incurred for travel away from home, may use an amount computed at the Federal M & IE rate for the locality of travel for each calendar day ... the employee or self-employed individual is away from home.” Rev. Proc. 90-60, § 4.03, 1990-2 C.B. at 653. . Kapp points to an opinion issued by the General Counsel for the Office of the Inspector General at the Department of Justice that examines the per diem travel allowances paid to border patrol agents. He claims that the opinion supports his position that expenses need not be paid or incurred to be deducted. The opinion concludes that border patrol agents can accept complimentary meals provided by their hotel without affecting their per diem. However, the border patrol agents, unlike mariners, incur other meal related expenses while traveling. . Kapp argues that these cases are distinguishable because the court found that neither taxpayer worked on board a common carrier. Therefore, they could not benefit from the provisions of 41 C.F.R. § 301-11.17, which provides that common carrier meals are not counted against the federal M & IE rate. As explained above, however, the common carrier exception only comes into play if the taxpayer is entitled to a per diem deduction for travel expenses in the first place, i.e., pays or incurs some travel related expenses. . Kapp notes that the regulations permit employees to receive tax-free per diem or hourly travel allowance payments instead of deducting expenses on their tax returns. Rev. Proc. 90-60, §§ 3.03, 4.01, 1990-2 C.B. 651. He argues that an employee, such as an airline pilot, can collect this payment when traveling regardless of whether he pays or incurs expenses. However, the code limits per diem allowances to the amount that the payor" }, { "docid": "7275348", "title": "", "text": "Those issues represent primarily questions of fact to be resolved by the jury in the event of dispute. In this case there is a dispute whether these contract changes were in fact validly authorized and whether the billings were issued with fraudulent intent. The District Court properly, therefore, submitted those issues to the jury on the basis of the record then before it. We are, however, of the opinion that the District Court erred in concluding that the billings in the first group, covering what was alleged to be excess billings, were false and fraudulent and in failing to dismiss as a matter of law the charges based on billings for per diem and material handling. Since these billings were an integral part of all the charges against the defendants, the failure of the District Court to eliminate these billings from the consideration of the jury requires the reversal of the convictions. Our reasons for this conclusion will require a separate discussion of the three types of billings involved in this first group. We begin with the per diem billings for work done more than fifty miles from Charleston. The written contract itself was quite specific on what per diem payments CSI was entitled to under the contract. It began by declaring unequivocally that “Per Diem shall not be paid for services performed at Contractors’ Charleston area facility or at any location within a fifty (50) mile radius of NAVELEXSYSENGCEN.” It was equally emphatic, as set forth in the next succeeding sentence, that “Per Diem will be paid in accordance with the provisions of the Military Joint Travel Regulation for civilians in amounts as shown both in CO-NUS and Overseas. Per Diem rates will be indicated in each Delivery Order.” (Italics added) The testimony was that, in connection with performance under the contract, the issuing officer in NAVELEX would secure from Mrs. Walsh, designated in the contract as “the representative of the Contracting Officer [to] be contacted for contract administration purposes,” the appropriate per diem rate, as stated in the “Military Joint Travel Regulation,” to be used in each delivery" }, { "docid": "7652044", "title": "", "text": "travel anticipated by counsel. Counsel should be ordered to obtain a clearance from the Court before such expenses are incurred. A similar recommendation applies to counsel’s use of nonlegal experts. Respectfully submitted, DATED: December 15,1995. . Plaintiffs’ counsel are not at this time seeking either attorneys' fees or reimbursement of paralegal expenses. .28 U.S.C. § 1920 provides in relevant part: a judge or clerk of any court of the United States may tax as cost the following: (1) Fees of the clerk and marshall; (2) Fees of the court reporter for all or any part of stenographic transcript necessarily obtained for use in the case; (3) Fees and disbursement for printing and witnesses; (4) Fees for exemplification and copies of papers necessarily obtained for use in the case; (5)Compensation of court appointed experts, compensation if interpreters, and salaries, fees, expenses ... . Fed.R.Civ.P. 54(d) provides in relevant part: (d) Costs. Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs. . 28 U.S.C. § 1821 provides reimbursement for attendance, mileage and subsistence. . The total amount awarded should equal $73,-379.93, or 80% of the amount requested ($91,-724.91). . This Court issued an Order on October 18, 1995, requesting supplemental information regarding the number of pages and price per page charged by each Arm. . Although the cases cited refer to telephone expenses, it seems only reasonable that in our day and age fax expenses should be equally reimbursed. In fact, it is often more economical to send a fax than to place a long distance telephone call. . This Court recommends that all lodging, meal, and incidental personal expenses be calculated according to the $205.50 per diem maximum rate. All other meal expenses should be denied. Actual expenses below the per diem rate should be paid in full. The reimbursement for airline tickets should not be included in the per diem rate, and should be granted separately. Similarly, the reimbursement for cab/parking/public transportation services should" }, { "docid": "21234883", "title": "", "text": "stated (and plaintiffs have not disputed) these quarters are provided without charge. Prior to July 1, 1970, NAVOCEANO personnel were paid locality per diem rates for the entire time the vessel on which they were assigned was in any port outside CONUS. Locality per diem rates are based upon varying local costs of living and are specifically established by the Department of State for various cities and ports around the world. On June 29, 1970, the Commander of NAVOCEANO issued NAVOCEANONOTE 4650 which, effective July 1,1970, reduced the in-port per diem rates from the locality per diem to the lower shipboard per diem for all NAVOCEANO civilian personnel unless the employee was required to maintain commercial quarters during the in-port visits. Following several challenges by NAVOCEANO civilian personnel, the Comptroller General, in Decision No. B-170655, 50 Comp. Gen. 389 (1970), held the NAVOCEANO determination paying only shipboard per diem rates for all in-port time to be inappropriate. While sanctioning the payment of shipboard per diem rates for a “reasonable stopover period” for refueling and taking on new supplies, the Comptroller General found entitlement to the higher locality per diem rates for any in-port period in excess of a “reasonable stopover period.” Finding a three-day stopover not unreasonable for refueling and taking on supplies, the Comptroller General ruled NAVOCEANO personnel entitled to payment of shipboard per diem rates for the first three days in port, with higher locality per diem rates for stopover days in excess of three. The DOD immediately conformed to this decision and codified it into regulation on October 1, 1971. Plaintiffs’ challenge of the denial of locality per diem rates is before this court on cross-motions for summary judgment. Citing our jurisdiction under 28 U.S.C. § 1491, plaintiffs seek payment of locality per diem rates for the first three days of any in-port stopover, retroactive to July 1, 1970, and retroactive payment of locality per diem rates for any other days in any port which was denied them due to the DOD policy change between July 1, 1970 and December 15, 1970. For the reasons stated below," }, { "docid": "4873042", "title": "", "text": "a movie, but defendants have omitted this amount from the costs they are seeking. Baisden objects to the amounts that defendants are seeking for Weisheit’s trial appearance on two bases: (1) since Weisheit resides in Dallas, and his testimony was limited to less than 45 minutes, there was no need for him to have an overnight stay in Houston; and (2) the amounts sought exceed the maximum per diem rate in 2011 for Houston, Texas, of $180.00 per diem with a maximum per diem lodging rate of $109.00 per night, and a maximum per diem rate for meals and incidental expenses of $71.00 per day. Defendants respond that Weisheit’s overnight stays were necessitated by his need to prepare to testify, observe Baisden’s expert testify, and testify. Because Houston, Texas, where the trial took place “is so far removed from [Weisheit’s] residence [in Dallas, Texas,] as to prohibit return thereto from day to day,” 28 U.S.C. § 1821(d)(1), and because Weisheit reasonably needed a day to prepare to testify and to observe Baisden’s expert testify before he testified, the court concludes that Weisheit’s appearance at the trial reasonably required two overnight stays in a Houston hotel. However, since the costs that defendants seek for Weisheit’s overnight stays exceed the maximum per diem rates for lodging and for meals and incidental expenses allowed for Houston, Texas, during February of 2011, the court concludes that the defendants are not entitled to recover the entire amount sought for Weisheit’s subsistence but, instead, may only recover $109.00 per night for lodging and $53.25 for meals and incidental expenses for his first and last days of travel (February 23 and 25), and $71 for meals and incidental expenses for February 24. See United Teacher Associates, 414 F.3d at 575 & n. 12 (“28 U.S.C. § 1821(d)(2) does not, however, permit the award of ‘actual costs,’ but limits such awards to the per diem rate.”). The court concludes that the total taxable cost for Weisheit’s trial appearance is $820.40 consisting of (1) $325.90 for airfare, (2) $395.50 for subsistence, (3) $60.00 taxi fares, and (4) $39.00 for" }, { "docid": "21234896", "title": "", "text": "applied were technically defective and hold defendant has properly interpreted and applied its own regulations. Therefore, we conclude plaintiffs are not entitled to the moneys sought, either for the first three days denied after July 1, 1970 or for any other days denied between July 1, 1970 and December 15,1970. Accordingly, plaintiffs’ motion for summary judgment is denied, defendant’s cross-motion is granted, and the petition is dismissed. On October 1, 1971, Joint Travel Regulation (JTR) par. C8101-3b(6) was amended to reflect the Interpretation of the regulations made by Comptroller General Decision No. B-170655. U.S.C. § 5911(a) defines quarters as follows; “quarters owned or leased by the Government.” See note 1, supra. DOD’s discretion in establishing per diem rates for various travel or temporary duty stations is not disputed. 6 U.S.C. § 5702 is the statutory basis under -which Federal employees are entitled to per diem allowances. In pertinent part, it states: “An employee, while traveling on official business away from his designated post of duty, is entitled to a per diem allowance prescribed by the agency concerned. * * *” [emphasis added] There can be little question that the above language grants discretion to Government agencies in determining what per diem allowances are applicable to different categories of travel or temporary duty status. Plaintiffs agree the term “travelers” includes persons assigned to temporary duty on Government ships. In Comptroller General Decision No. B-170655, 50 Comp. Gen. 389, 390 (1970), the following was stated: “The employees here Involved are assigned extended tours of temporary duty aboard specific survey vessels and during voyages, including stopovers for talcing on fuel and other supplies, the vessels — as distinguished from a port at which a stop might he made — are, in essence, the employees’ temporary duty stations. * * * We, therefore are of the opinion that the employees Involved are entitled under ordinary circumstances only to the per diem prescribed in paragraph C8101-2d, (shipboard per diem rates) quoted above.” [citation omitted] [emphasis added]" }, { "docid": "18936990", "title": "", "text": "Diem Allowances With regard to the section 274(d) substantiation requirements applicable to United’s overnight per diem allowances, respondent’s regulations and rulings are to be given particular weight. See sec. 274(d); sec. 1.274 — 5(c)(2)(b), Income Tax Regs. The majority opinion, however, ignores the specific rulings that respondent promulgated which apply to employer-provided overnight travel allowances and to the years in controversy herein. Rev. Rui. 80-62, 1980-1 C.B. 63 (hereinafter referred to as the $44 Ruling), provided that, for overnight travel allowances, the maximum per diem deduction available without substantiation was $44 per day, which included travel expenses for meals and lodging, laundry, cleaning and pressing of clothing, and fees and tips for services, such as for waiters and baggage handlers. However, Rev. Rul. 84 — 164, 1984-2 C.B. 63 (hereinafter referred to as the $14 Ruling), provided that the $44 Ruling did not apply where the “per diem allowances [were] intended to cover only employee meal expenses, as when the employer pays for directly or furnishes the lodging, or when there is no lodging expense.” (Emphasis.added.) The $14 Ruling’s stated purpose is to amplify and to limit the $44 Ruling. It appears to me that the above language constitutes a blanket disqualification of the $44 Ruling where there are no lodging expenses relating to overnight travel to be paid out of per diem travel allowances. As I read the language of the $14 Ruling, in the context of overnight travel, the maximum allowable amount that may be deducted under any provision of section 162 without substantiation can be no more than $14 per day in two instances: (1) Where only employee meals are covered by the allowances, or (2) where there are no lodging expenses. Our memorandum opinion to the contrary in Murphy v. Commissioner, T.C. Memo. 1993-292, does not constitute binding precedent and should not be followed. In the present case, because there were no lodging expenses to be paid by United’s employees out of the overnight per diem travel allowances the employees received, sec tion 274(d)(1) limits the maximum amount deemed substantiated under United’s per diem program to" }, { "docid": "22298177", "title": "", "text": "and contracts for the supplies of materials, and for workmanship. 14. “ Where there is no agent for fortifications, the superintending officer shall perform the duties of agent, and while performing such duties, the rules arjd regulations for the government of the agents shall be applicable to him; and as a compensation for the performance of that extra duty, he will be allowed, for moneys expended by him in the construction of fortifications a,t the rate of two dollars per diem, during the continuance of such disbursements; provided the whole amount of emolument shall not exceed two and a half per cent, on the sum expended.” The '67th article of the Regulations of 1825, provides as follows r 888. “ The duties of the engineer department comprise reconnoitring and surveying for military purposes, and for internal improvements, together with the collection and preservation of topographical and geographical memoirs, and drawings referring to those objects; the selection of sites, the formation of plans and estimates, the construction, repair, and inspection of fortifications, and the disbursements of the sums appropriated for the fulfilment gf those objects severally, comprising those of the military academy; also the superintendence of the execution of the acts of Congress, in relation-to internal improvement, by roads, canals, the navigation of rivers, and the repairs' and improvements connected with the harbours of. the United States, or the entrance into the same, which may be authorized by acts of Congress, with the éxecution of which the War Department may be charged.” 893. “ The engineer superintending the construction of a fortification, will disburse the moneys applied to the samé, and .as compensation for the performance of that extra duty, will be allowed at the rate of two dollars per diem during the continuance- of such disbursements, provided the whole .amount of emolument shall not exceed two and a half per cent, on the sum disbursed.” So. far as the present item is concerned, these regulations do not differ in substance. They both raise the question as to the proper interpretation of them whether the allowance of two dollars per diem," }, { "docid": "8879455", "title": "", "text": "two months, consideration shall be given to a change in official station, unless there is a basis for expecting the employee to return to his permanent duty station within a reasonable time after the expiration of the two-month period. The per diem authorized should be reexamined at the end of each month of temporary duty to determine whether continuance of the per diem allowance prescribed is justified, or whether a different per diem allowance should be prescribed. See NCPI 240.10-Encl. 1, Sec. 6.2d and Sec. 6.9b. * H* * * $ 240.10-Encl. 1 Section 6. subsistence expenses 6.2 Bates of per diem. — * * * ‡ ‡ # d. In any case where the employee’s tour of travel requires more than two months’ stay at a temporary duty station, consideration should be given to either change in official station or a reduction m the per diem allowance. 17. After plaintiff arrived at Leading, he remained there on the job for a period totaling 460 days. He received per diem in lieu of subsistence for 30 of these days at the rate of $12 per day, totaling $360. Subsequent to plaintiff’s return to Philadelphia from his assignment at Leading in 1959, he filed a supplemental claim for 400 days per diem at the rate of $12 per day, totaling $4,800, in lieu of subsistence expense, for the time he was at Leading, which claim was denied by the Office of Industrial Lelations, Department of the Navy. Thereafter, on September 19,1963, plaintiff filed his petition herein. Conclusión of Law Upon the foregoing findings of fact and opinion, which are adopted by this court and made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover and the petition is dismissed. The opinion, findings of fact and recommended conclusion of law are submitted under the order of reference and Rule 57 (a). Plaintiff denies that he attended the meeting and argues that certain facts hereinafter set forth show that the testimony presented by Government witnesses upon which the foregoing facts are" }, { "docid": "19733049", "title": "", "text": "concerned, members of the uniformed services shall be entitled to receive travel and transportation allowances for travel performed or to be performed under competent orders (1) upon a change of permanent station, or otherwise, or when away from their designated post of duty regardless of the length of time away from such designated post of duty * * *. The respective Secretaries concerned may prescribe (1) the conditions under which travel and transportation allowances shall be authorized, including advance payment thereof, and (2) the allowances for types of travel not to exceed amounts herein authorized. Pursuant to the authority therein given, valid Joint Travel Regulations were issued by the Secretaries of the Armed Services. We are of opinion that plaintiffs are not entitled to recover under these travel regulations. JTR 3050, in section 1, provides that “Members are entitled to travel and transportation allowances as authorized in accordance with existing regulations, only while actually in a ‘travel status’. They shall be deemed to be in a travel status while performing travel away from their permanent duty station, upon public business * * [Italics ours.] Section 2 thereof provides that “ ‘travel status’ * * * will commence with departure from permanent duty station or ship, and will include * * * travel from one permanent duty station to another permanent duty station.” When plaintiffs received their orders to report to the Officers Candidate School, they were at their homes, having just enlisted. At that time they had no “permanent duty station.” Their first duty station was the Officers Candidate School. They were entitled to per diem allowance while they were traveling from their homes in Brooklyn, New York, and Lanikai, Oahu, T.H., respectively, to Newport, Rhode Island, but after arrival at Newport they were not entitled to per diem allowance, because they were not away from their “permanent duty station.” They had no duty station other than the Officers Candidate School. Personnel are entitled to per diem allowance while away from their “permanent duty station”, and at a temporary station, to reimburse them for the additional expense of maintaining quarters" }, { "docid": "21234882", "title": "", "text": "KuNzig, Judge, delivered the opinion of the court: This is a civilian pay suit in which plaintiffs basically challenge the exercise of Department of Defense (DOD) discretion in determining the in-port per diem rates for Naval Oceanographic Office (NAVOCEANO) personnel. DOD now authorizes payment of shipboard per diem rates for the first three days a NAVOCEANO vessel is in any port outside the Continental United States (CONUS), with higher locality per diem rates permitted for all subsequent days in port. We fail to find any abuse of administrative discretion and conclude plaintiffs are not entitled to locality per diem rates for their first three days in port. Plaintiffs are civilian shipboard personnel employed by NAVOCEANO aboard ships throughout the world conducting oceanographic and hydrographic surveys. The material facts herein are not in dispute. Survey schedules normally allow for approximately 25 to 28 days at sea and five to seven days in various ports. While assigned to a NAVOCEANO vessel, whether at sea or temporarily in some foreign port, plaintiffs receive lodging aboard ship. Defendant has stated (and plaintiffs have not disputed) these quarters are provided without charge. Prior to July 1, 1970, NAVOCEANO personnel were paid locality per diem rates for the entire time the vessel on which they were assigned was in any port outside CONUS. Locality per diem rates are based upon varying local costs of living and are specifically established by the Department of State for various cities and ports around the world. On June 29, 1970, the Commander of NAVOCEANO issued NAVOCEANONOTE 4650 which, effective July 1,1970, reduced the in-port per diem rates from the locality per diem to the lower shipboard per diem for all NAVOCEANO civilian personnel unless the employee was required to maintain commercial quarters during the in-port visits. Following several challenges by NAVOCEANO civilian personnel, the Comptroller General, in Decision No. B-170655, 50 Comp. Gen. 389 (1970), held the NAVOCEANO determination paying only shipboard per diem rates for all in-port time to be inappropriate. While sanctioning the payment of shipboard per diem rates for a “reasonable stopover period” for refueling and taking" } ]

[ { "docid": "20402790", "title": "", "text": "the District of Connecticut reviewed these precedents, but did not reach a conclusion about which successor liability standard governed, because the court determined that there was successor liability under any of the standards. See Medina v. Unlimited Sys., LLC, 760 F.Supp.2d 263 (D.Conn.2010). The Court does not find persuasive the Eastern District courts’ analysis of this issue. In Kaur, the court rejected the defendants’ argument that the court should follow the Ninth Circuit in Steinbach (and the District of Nebraska in Brock) and import the broader “substantial continuity test” from Title VII cases to a FLSA case. The court cited the Second Circuit’s decision in NSI, 460 F.3d 201, holding that the traditional common law test outlined above was also the “federal common-law” successor liability test in the context of the Comprehensive Environmental Response Compensation and Liability Act of 1980 (“CERCLA”), 42 U.S.C. §§ 9601, et seq. Kaur, 643 F.Supp.2d at 289 n. 10 (citing NSI, 460 F.3d at 209). In NSI, the Second Circuit noted that, in accordance with the Supreme Court’s holding in United States v. Bestfoods, 524 U.S. 51, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998), “when determining whether liability under CERCLA passes from one corporation to another, we must apply common law rules and not create CERCLA-specific rules.” NSI, 460 F.3d at 205. The court determined that because there was no conflict between the traditional state/common law test for successor liability and the federal interests at issue in CERCLA, the traditional common law test should apply. Id. However, that decision was limited to the CERCLA context. Thus, the Court does not agree with the Kaur court’s conclusion that NSI mandated that the traditional common law successor liability test was appropriate in all circumstances. The NSI decision did not affect the long-standing application of the broader “substantial continuity” test by federal courts in various labor and employment contexts both before and after NSI. As the Ninth Circuit has explained, “beginning with cases under the National Labor Relations Act (“NLRA”), federal courts have developed a federal common law successorship doctrine that now extends to almost every employment law" } ]

[ { "docid": "4665922", "title": "", "text": "Kaur, 643 F.Supp.2d at 289; see also Said v. SBS Electronics, Inc., No. 1:08cv3067 (RJD)(JO), 2010 WL 1287080, at *3-*4 (E.D.N.Y. Mar. 31, 2010) (finding no successor liability under a de facto merger theory because the evidence did not establish continuity of ownership). Only Second Circuit district courts in the Eastern District of New York have analyzed successor liability under the FLSA in any detail. However, courts in the Southern District of New York, the Western District of New York, and the District of Connecticut have applied a version of the Supreme Court’s “substantial continuity” test to evaluate successor liability for Title VII violations. See, e.g., Molfese v. Fairfaxx Corp., No. 3:05cv317 (VLB), 2006 WL 1438582, at *3 (D.Conn. May 12, 2006); E.E.O.C. v. Nichols Gas & Oil, Inc., 518 F.Supp.2d 505, 510-11 (W.D.N.Y.2007); Abdel-Khalek v. Ernst & Young, L.L.P., 1:97cv4514 (JGK)(MHD), 1999 WL 190790, at *7 (S.D.N.Y. Apr. 7, 1999); Long v. AT & T Info. Sys., Inc., 733 F.Supp. 188, 208 (S.D.N.Y.1990). The substantial continuity test that those district courts have applied in the Title VII context examines not only whether there has been substantial continuity in operations, but also whether the purchasing corporation had notice of the charges against the selling corporation, and whether the predecessor corporation has the ability to provide relief. See, e.g., Nichols Gas & Oil, 518 F.Supp.2d at 512. C. There is no Connecticut Supreme Court decision that defines the requirements for successor liability. The Connecticut Appellate Court has quoted treatises and Second Circuit cases to articulate Connecticut’s successor liability standard. See Chamlink Corp. v. Merritt Extruder Corp. 96 Conn.App. 183, 187, 899 A.2d 90 (2006). Despite the lack of relevant Connecticut Supreme Court decisions, at least one court in the District of Connecticut has been able to discern and apply specific successor liability doctrines that have developed within the state common law. See Altman v. Motion Water Sports, Inc., 722 F.Supp.2d 234, 239-48 (D.Conn.2010). In Connecticut, the general rule is the same as the traditional common law rule: “The mere transfer of the assets of one corporation to another corporation or individual" }, { "docid": "4665921", "title": "", "text": "of 1974); Bates v. Pac. Maritime Ass’n, 744 F.2d 705, 709-10 (9th Cir.1984) (Title VII); Trujillo v. Longhorn Mfg. Co., Inc., 694 F.2d 221, 225 (10th Cir.1982) (Title VII). While the courts that have applied a substantial continuity standard to determine successor liability in the federal labor law context do not all define the standard in exactly the same way, the various incarnations of the substantial continuity test are based on the principle that “[t]he inquiry is not merely whether the new employer is a successor in the strict corporate-law sense of the term.” See Sullivan, 623 F.3d at 781 (quotation marks omitted). Although the Second Circuit has not designated a standard for determining successor liability for FLSA violations, courts in the Eastern District of New York that have dealt with successor liability under the FLSA have applied New York’s common law successor liability test, as implemented by the Second Circuit in the CERCLA context post Bestfoods. See Vasquez v. Ranieri Cheese Corp., No. 1:07cv464 (ENV)(VVP), 2010 WL 1223606, at *10 (E.D.N.Y. Mar. 26, 2010); Kaur, 643 F.Supp.2d at 289; see also Said v. SBS Electronics, Inc., No. 1:08cv3067 (RJD)(JO), 2010 WL 1287080, at *3-*4 (E.D.N.Y. Mar. 31, 2010) (finding no successor liability under a de facto merger theory because the evidence did not establish continuity of ownership). Only Second Circuit district courts in the Eastern District of New York have analyzed successor liability under the FLSA in any detail. However, courts in the Southern District of New York, the Western District of New York, and the District of Connecticut have applied a version of the Supreme Court’s “substantial continuity” test to evaluate successor liability for Title VII violations. See, e.g., Molfese v. Fairfaxx Corp., No. 3:05cv317 (VLB), 2006 WL 1438582, at *3 (D.Conn. May 12, 2006); E.E.O.C. v. Nichols Gas & Oil, Inc., 518 F.Supp.2d 505, 510-11 (W.D.N.Y.2007); Abdel-Khalek v. Ernst & Young, L.L.P., 1:97cv4514 (JGK)(MHD), 1999 WL 190790, at *7 (S.D.N.Y. Apr. 7, 1999); Long v. AT & T Info. Sys., Inc., 733 F.Supp. 188, 208 (S.D.N.Y.1990). The substantial continuity test that those district courts have applied in" }, { "docid": "20402791", "title": "", "text": "United States v. Bestfoods, 524 U.S. 51, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998), “when determining whether liability under CERCLA passes from one corporation to another, we must apply common law rules and not create CERCLA-specific rules.” NSI, 460 F.3d at 205. The court determined that because there was no conflict between the traditional state/common law test for successor liability and the federal interests at issue in CERCLA, the traditional common law test should apply. Id. However, that decision was limited to the CERCLA context. Thus, the Court does not agree with the Kaur court’s conclusion that NSI mandated that the traditional common law successor liability test was appropriate in all circumstances. The NSI decision did not affect the long-standing application of the broader “substantial continuity” test by federal courts in various labor and employment contexts both before and after NSI. As the Ninth Circuit has explained, “beginning with cases under the National Labor Relations Act (“NLRA”), federal courts have developed a federal common law successorship doctrine that now extends to almost every employment law statute.” Steinbach, 51 F.3d at 845 (citing Golden State Bottling Co. v. NLRB, 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973) (NLRA); Upholsterers’ Int’l Union Pension Fund v. Artistic Furniture of Pontiac, 920 F.2d 1323 (7th Cir.1990) (Multiemployer Pension Plan Amendments Act (“MPPAA”)); Sec’y of Labor v. Mullins, 888 F.2d 1448 (D.C.Cir.1989) (Mine Safety and Health Act); Criswell v. Delta Air Lines, Inc., 868 F.2d 1093 (9th Cir.1989) (Age Discrimination in Employment Act); Trustees for Alaska Laborers-Construction Indus. Health & Sec. Fund v. Ferrell, 812 F.2d 512 (9th Cir.1987) (ERISA); Musikiwamba v. ESSI, Inc., 760 F.2d 740 (7th Cir.1985) (42 U.S.C. § 1981); Bates v. Pac. Mar. Ass’n, 744 F.2d 705 (9th Cir.1984) (Title VII)). As the Connecticut District Court pointed out in Medina, Courts in this Circuit have applied this test in, inter alia, the Title VII context. 760 F.Supp.2d at 269 (citing Molfese v. Fairfaxx Corp., No. 05 Civ. 317, 2006 WL 1438582, at *3 (D.Conn. May 12, 2006) ; EEOC v. Nichols Gas & Oil, Inc., 518 F.Supp.2d 505, 510-11" }, { "docid": "13825116", "title": "", "text": "assets of a second corporation does not assume the debts and liabilities of the second corporation.” Bud Antle, Inc. v. Eastern Foods, Inc., 758 F.2d 1451, 1456 (11th Cir.1985). The doctrine of successor liability recognizes four traditional exceptions to this general rule, allowing a court to impose liability upon the successor corporation. Id. One such exception applies when the successor corporation is a “mere continuation” or reincarnation of the selling corporation. Id. Plaintiff does not argue that Defendant fits within the “mere continuation” exception, but instead relies on a broadened test of successorship, “substantial continuity,” that has evolved from the “mere continuation” exception. See United States v. Mexico Feed & Seed Co., Inc., 980 F.2d 478, 487 (8th Cir.1992). The “substantial continuity” exception originated from a line of Supreme Court labor relations cases, starting with Golden State Bottling Co. v. NLRB, 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973)1 See Mexico Feed & Seed, 980 F.2d at 487-88. Since Golden State Bottling, the exception has been applied in the context of products liability and federal environmental regulation, where “the public policy vindicated by recovery from the implicated assets is paramount to that supported by traditional rules delimiting successor liability.” See Mexico Feed & Seed, 980 F.2d at 487-88 (CERCLA); Cyr v. B. Offen & Co., Inc., 501 F.2d 1145 (1st Cir.1974) (products liability). Although the test for the “substantial continuity” exception varies in different jurisdictions, the test typically considers: whether the purchaser retained the same facilities, same employees, same name, same production facilities in the same location, same supervisory personnel; and produced the same product; maintained a continuity in assets; continued the same general business operation; and held itself out to the public as a continuation of the previous enterprise. Mexico Feed & Seed, 980 F.2d at 488 n. 10. To the Court’s knowledge, no court has applied the “substantial continuity” exception to assign liability to a successor corporation in the context of an antitrust claim. The Eleventh Circuit, while adopting the “sub stantial continuity” exception in the context of labor law, see Road Sprinkler Fitters Local Union" }, { "docid": "20402787", "title": "", "text": "in its absence.” Douglas v. Stamco, 363 Fed. Appx. 100, 102 (2d Cir.2010) (quoting NSI, 460 F.3d at 211). Here, there is no dispute that ownership of the business changed hands; thus, regardless of whether the other de facto merger factors are present, the de facto merger and “mere continuation” exceptions do not apply. Accordingly, if the Court were to apply the traditional common law test used in New York state courts, SCFAL would not be held liable as a successor to Cornelia Fifth. 2. Whether to Apply the Broader “Substantial Continuity” Test Plaintiffs argue that the Court should apply the broader test for successor liability that federal courts typically apply in the labor and employment context. Under this test, a company that purchases another company’s assets may be liable as a successor if there was “ ‘substantial continuity’ between the enterprises.” Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 43, 107 S.Ct. 2225, 96 L.Ed.2d 22 (1987). Unlike the traditional common law test, this test does not require continuity of ownership between the two businesses; thus, under this test, SCFAL could potentially be liable as a successor. The test will be discussed in more detail below, but in sum, courts applying this test to situations in which a business purchases the assets of another business look to whether “(1) the successor had notice of the claim before acquisition”; and (2) “there was substantial continuity in the operation of the business before and after the sale.” Rowe Entm’t, Inc. v. William Morris Agency, Inc., 98 Civ. 8272, 2005 WL 22833, at *79 (S.D.N.Y. Jan. 5, 2005) (quoting Shevack v. Litton Applied Tech., No. 95 Civ. 7740, 1998 WL 512959, at *2 (S.D.N.Y. Aug. 19,1998)). The Second Circuit has not yet addressed the applicability of the “substantial continuity” test in the FLSA context. However, several courts outside this Circuit have held that the “substantial continuity” test should be applied to FLSA cases. See Steinbach v. Hubbard, 51 F.3d 843, 845-46 (9th Cir.1995); Chao v. Concrete Mgt. Resources, L.L.C., No. 08-2501-JWL, 2009 WL 564381, at *3 (D.Kan. Mar. 5," }, { "docid": "12344553", "title": "", "text": "this inquiry. See, e.g., Golden State Bottling Co., 414 U.S. at 171-174, 94 S.Ct. at 418-420, 38 L.Ed.2d at 395-397. See also, Boeing Co. v. International Association of Machinists and Aerospace Workers, 504 F.2d 307 (5th Cir.1974), cert, denied, 421 U.S. 913, 95 S.Ct. 1570, 43 L.Ed.2d 779 (1975). Of greater importance, however, is the Court’s pronouncement that the test for successor liability is fact specific and must be conducted “in light of the facts of each case and the particular legal obligation which is at issue.” 417 U.S. at 262, n. 9, 94 S.Ct. at 2243, n. 9,41 L.Ed.2d at 56-57,.n. 9. Thus, the Court emphasized that: [t]here is, and can be, no single definition of “successor” which is applicable in every legal context. A new employer, in other words, may be a successor for some purposes and not for others. Id. Although the former Fifth Circuit Court of Appeals and this court have not considered whether the successor liability doctrines enunciated by the Supreme Court in a labor law setting should be applicable to Title VII successor problems, other courts which have examined this question have answered it in the affirmative. See, e.g., EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086 (6th Cir.1974). MacMillan was the first case to scrutinize successor liability in the area of employment discrimination. Reviewing the labor law successor liability cases discussed above, the Sixth Circuit found that the logic of those cases was equally compelling in Title VII litigation. Many other courts have adopted the MacMillan approach. See Dominguez v. Hotel, Motel, Restaurant & Miscellaneous Bartenders Union, Local 64, 674 F.2d 732 (8th Cir.1982); EEOC v. Sage Realty Corp., 507 F.Supp. 599 (S.D.N.Y.1981); Burt v. Ramada Inn of Oxford Mississippi, 507 F.Supp. 336 (N.D.Miss.1980); Brown v. Evening News Association, 473 F.Supp. 1242 (E.D.Mich.1979); Escamilla v. Mosher Steel Company, 386 F.Supp. 101 (S.D.Tex.1975). We agree that the balancing of interests, fact specific analysis employed by the Supreme Court in labor law successor cases is the proper method for determining whether a successor employer should be bound by the Title VII transgressions charged against" }, { "docid": "12995788", "title": "", "text": "Second, the defendant-corporation in Howard Johnson only employed nine of the fifty-three former employees and thus there was no “substantial continuity of identity in the business enterprise” requiring the defendant-corporation to negotiate with the union. Id. at 259-60, 94 S.Ct. 2236. b. Courts extended successor liability from labor law to Title VII and the Vietnam Veteran’s Readjustment Assistance Act. In MacMillan, 503 F.2d at 1086, this Court extended successor liability from the labor law context to Title VII. Interpreting the Supreme Court’s decisions in Wiley, Bums, and Golden State Bottling Compa ny, this Court concluded that the appropriateness of successor liability depends on whether the imposition of such liability would be equitable. Id. at 1089-91. The Court further concluded that whether successor liability is equitable in a particular case requires courts to balance 1) the interests of the defendant-employer, 2) the interests of the plaintiff-employee, and 3) the goals of federal policy, in light of the particular facts of a case and the particular legal obligation at issue. Id. at 1091. The Court emphasized that “there is, and can be, no single definition of ‘successor’ which is applicable in every legal context.” Id. Successor liability questions must be answered on a case by case basis, and “a new employer ... may be a successor for some purposes and not for others.” Id. The MacMillan panel also laid the framework for a multi-factor approach that would subsequently be adopted in several circuits and codified in the FMLA’s regulations. 29 C.F.R. § 825.107; Smegal v. Gateway Foods of Minneapolis, Inc. 819 F.2d 191, 194 (8th Cir.1987); In re Nat’l Airlines, Inc., 700 F.2d 695, 698 (11th Cir.1983); Trujillo v. Longhorn Mfg. Co., 694 F.2d 221, 224-225 (10th Cir.1982). The panel gathered labor case law and distilled from it the following factors, which it held were relevant to the imposition of sucees-sorship liability: (1) whether the successor company has notice of the charge; (2) the ability of the predecessor to provide relief; (3) whether the new employer uses the same plant; (4) whether there has been substantial continuity of business operations; (5) whether" }, { "docid": "4665917", "title": "", "text": "by its broad application.” Id. at 182 n. 5, 94 S.Ct. 414. In B.F. Goodrich v. Betkoski, 99 F.3d 505, the Second Circuit held that the substantial continuity test applied by the Supreme Court in the NLRA context should also be used to determine whether purchaser corporations could be held liable for seller corporations’ violations of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). The Second Circuit reasoned that “the substantial continuity test is more consistent with [CERCLA’s] goals ... [than] the older and more inflexible ‘identity’ rule.” Id. at 519. However, following the Second Circuit’s decision in Betkoski, the Supreme Court held that CERCLA had not “displaced or fundamentally altered common law standards of limited liability.” See United States v. Bestfoods, 524 U.S. 51, 70, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998); see also Yankee Gas Serv. Co. v. UGI Utilities, Inc., 616 F.Supp.2d 228, 240-43 (D.Conn.2009) (discussing Bestfoods). The Supreme Court observed: “CERCLA is [ ] like many other congressional enactments in giving no indication that ‘the entire corpus of state corporation law is to be replaced simply because a plaintiffs cause of action is based upon a federal statute.’ ” Bestfoods, 524 U.S. at 63, 118 S.Ct. 1876 (citation omitted). The Second Circuit took the Supreme Court’s Best-foods holding to mean that in Betkoski, it had incorrectly “adopt[ed] a special [successor liability] rule for use in CERCLA cases,” see Nat’l Serv. Indus. I, 352 F.3d at 685-86, and concluded that the substantial continuity doctrine was not “part of the federal common law for CERCLA purposes.” Id. at 687. However, the Second Circuit also acknowledged that “[i]n Best-foods, the Supreme Court expressly declined to decide whether courts should apply state or federal common law under CERCLA.” Id. at 687 n. 1. When the Second Circuit revisited successor liability under CERCLA in National Services Industries I and II, it was able to avoid deciding whether state or federal common law applied because it found that New York’s successor liability rule was virtually identical to the traditional common law rule. See id.; Nat’l Serv. Indus. II, 460 F.3d at" }, { "docid": "12344554", "title": "", "text": "to Title VII successor problems, other courts which have examined this question have answered it in the affirmative. See, e.g., EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086 (6th Cir.1974). MacMillan was the first case to scrutinize successor liability in the area of employment discrimination. Reviewing the labor law successor liability cases discussed above, the Sixth Circuit found that the logic of those cases was equally compelling in Title VII litigation. Many other courts have adopted the MacMillan approach. See Dominguez v. Hotel, Motel, Restaurant & Miscellaneous Bartenders Union, Local 64, 674 F.2d 732 (8th Cir.1982); EEOC v. Sage Realty Corp., 507 F.Supp. 599 (S.D.N.Y.1981); Burt v. Ramada Inn of Oxford Mississippi, 507 F.Supp. 336 (N.D.Miss.1980); Brown v. Evening News Association, 473 F.Supp. 1242 (E.D.Mich.1979); Escamilla v. Mosher Steel Company, 386 F.Supp. 101 (S.D.Tex.1975). We agree that the balancing of interests, fact specific analysis employed by the Supreme Court in labor law successor cases is the proper method for determining whether a successor employer should be bound by the Title VII transgressions charged against its predecessor. Having concluded that the balancing test is appropriate, we turn to the highly unusual facts of this case. Not only has National been acquired by an airline with a maternity leave policy at odds with one found acceptable by the Florida district court, but Pan American’s leave plan was adjudged to be in compliance with Title VII by other courts. Under these particular circumstances, the balance strikes against enjoining Pan American from continuing its policy. In making this judgment, we recognize that the former National attendants have a legitimate interest in working under discrimination-free conditions and are sympathetic with their attempt to realize the benefit of the decision they obtained against National in the Florida district court, but the difficult facts in this case prompt this result. Pan American successfully defended its policy against a Title VII challenge and has fully integrated former National attendants into its operations. It has a legitimate interest in treating its employees in an evenhanded manner. Although the former National attendants argue that the policy approved by the" }, { "docid": "12995790", "title": "", "text": "the new employer uses the same or substantially same workforce; (6) whether the new employer uses the same or substantially same supervisory personnel; (7) whether the same jobs exist under substantially the same working conditions; (8) whether [the defendant] uses the same machinery, equipment and methods of production; and (9) whether [the defendant] produces the same product. MacMillan, 503 F.2d at 1094. This so-called multi-factor approach has since been applied to cases under the Vietnam Veteran’s Readjustment Assistance Act, see Leib v. Georgiar-Pac. Corp., 925 F.2d 240, 245-46 (8th Cir.1991), and codified in the FMLA’s implementing regulations, 29 C.F.R. § 825.107. The nine-factors listed in Mac-Millan and subsequently adopted in regulation 29 C.F.R. § 825.107, are not in themselves the test for successor liability. Instead, the nine factors are simply factors courts have considered when applying the three prong balancing approach, considering the defendant’s interests, the plaintiffs interests, and federal policy. As will be explained in more detail below, all nine factors will not be applicable to each case. Whether a particular factor is relevant depends on the legal obligation at issue in the case. The ultimate inquiry always remains whether the imposition of the particular legal obligation at issue would be equitable and in keeping with federal policy. c. The merger or transfer of assets is not always a precondition to successor liability under the FMLA. The regulations implementing the FMLA adopt the definition of “successor in interest” set forth in MacMillan, thereby adopting the labor law concept of successor liability. Because the merger or transfer of assets is not a precondition to successor liability in the labor law (or Title VII) context, it is not a precondition for liability in the FMLA context. Instead, the labor law concept of successor liability requires courts to balance the equities of imposing a particular legal obligation in a particular situation, considering 1) the interests of the defendant-employer, 2) the interests of the plaintiff-employee, and 3) federal policy embodied in the relevant federal statutes. In labor case law, it is the legal obligation at issue that determines which factors listed in 29" }, { "docid": "12995781", "title": "", "text": "a deeper analysis. The argument’s initial appeal stems from the common understanding of successor liability as a corporate law concept, applied when a corporation reorganizes to ensure that creditors are not defrauded. Successor liability under the FMLA, however, derives from labor law, not corporate law. See infra. Labor cases, whose holdings were later applied to Title VII cases, apply an equitable, policy driven approach to successor liability that has very little connection to the concept of successor liability in corporate law. Golden State Bottling Co. v. NLRB, 414 U.S. 168, 184-85, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973); NLRB v. Burns Int’l Security Servs., Inc., 406 U.S. 272, 279-87, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972); John Wiley & Sons v. Livingston, 376 U.S. 543, 549, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). Successor liability is imposed in labor law if the court determines that it would be equitable to impose such liability-considering 1) the defendant’s interest, 2) the plaintiffs interest, and 3) federal policy embodied in the relevant statutes in light of the particular facts of the case and the particular duty at issue. See EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1089-91 (6th Cir.1974) (adopting labor approach to successor liability in a Title VII case). a. The principles of federal successor liability applicable to the FMLA originate in federal labor law. The Supreme Court first addressed labor law successor liability in John Wiley & Sons, Inc. v. Livingston, 376 U.S. at 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). In Wiley, the Supreme Court held that the defendant-corporation, formed as the result of a merger, was bound to arbitrate with the plaintiff-union under the arbitration clause of the pre-merger corporation’s collective bargaining agreement. Id. at 548, 84 S.Ct. 909. The Court reasoned that the federally imposed duty to arbitrate labor disputes could not be effectuated if every change in corporate structure relieved employers of the duty to arbitrate. Id. at 549, 84 S.Ct. 909. Concluding that a collective bargaining agreement was not truly a consensual contract to which the ordinary principles of contract law applied, the" }, { "docid": "12995789", "title": "", "text": "“there is, and can be, no single definition of ‘successor’ which is applicable in every legal context.” Id. Successor liability questions must be answered on a case by case basis, and “a new employer ... may be a successor for some purposes and not for others.” Id. The MacMillan panel also laid the framework for a multi-factor approach that would subsequently be adopted in several circuits and codified in the FMLA’s regulations. 29 C.F.R. § 825.107; Smegal v. Gateway Foods of Minneapolis, Inc. 819 F.2d 191, 194 (8th Cir.1987); In re Nat’l Airlines, Inc., 700 F.2d 695, 698 (11th Cir.1983); Trujillo v. Longhorn Mfg. Co., 694 F.2d 221, 224-225 (10th Cir.1982). The panel gathered labor case law and distilled from it the following factors, which it held were relevant to the imposition of sucees-sorship liability: (1) whether the successor company has notice of the charge; (2) the ability of the predecessor to provide relief; (3) whether the new employer uses the same plant; (4) whether there has been substantial continuity of business operations; (5) whether the new employer uses the same or substantially same workforce; (6) whether the new employer uses the same or substantially same supervisory personnel; (7) whether the same jobs exist under substantially the same working conditions; (8) whether [the defendant] uses the same machinery, equipment and methods of production; and (9) whether [the defendant] produces the same product. MacMillan, 503 F.2d at 1094. This so-called multi-factor approach has since been applied to cases under the Vietnam Veteran’s Readjustment Assistance Act, see Leib v. Georgiar-Pac. Corp., 925 F.2d 240, 245-46 (8th Cir.1991), and codified in the FMLA’s implementing regulations, 29 C.F.R. § 825.107. The nine-factors listed in Mac-Millan and subsequently adopted in regulation 29 C.F.R. § 825.107, are not in themselves the test for successor liability. Instead, the nine factors are simply factors courts have considered when applying the three prong balancing approach, considering the defendant’s interests, the plaintiffs interests, and federal policy. As will be explained in more detail below, all nine factors will not be applicable to each case. Whether a particular factor is relevant" }, { "docid": "12995782", "title": "", "text": "facts of the case and the particular duty at issue. See EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1089-91 (6th Cir.1974) (adopting labor approach to successor liability in a Title VII case). a. The principles of federal successor liability applicable to the FMLA originate in federal labor law. The Supreme Court first addressed labor law successor liability in John Wiley & Sons, Inc. v. Livingston, 376 U.S. at 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). In Wiley, the Supreme Court held that the defendant-corporation, formed as the result of a merger, was bound to arbitrate with the plaintiff-union under the arbitration clause of the pre-merger corporation’s collective bargaining agreement. Id. at 548, 84 S.Ct. 909. The Court reasoned that the federally imposed duty to arbitrate labor disputes could not be effectuated if every change in corporate structure relieved employers of the duty to arbitrate. Id. at 549, 84 S.Ct. 909. Concluding that a collective bargaining agreement was not truly a consensual contract to which the ordinary principles of contract law applied, the Court balanced the competing interests to determine if successor liability furthered federal policy in an equitable manner. Id. In the balance, the Court weighed the need of the employers to reorganize against the need of the employees to be protected in the process of reorganization, a process in which employees have no power. Id. The Court concluded that while the duty to arbitrate does not survive every corporate change, a “successor” corporation will be bound by its predecessor’s duty to arbitrate where “there is a substantial continuity in the identity of the business enterprise.” Id. at 551, 84 S.Ct. 909. In the context of a merger, substantial continuity was evidenced by the “wholesale transfer of ... employees.” Id. The Supreme Court refined Wiley’s doctrine of successor liability in NLRB v. Burns International Security, 406 U.S. at 281-82, 92 S.Ct. 1571, clarifying that a defendant-company could be a successor for one purpose but not for another purpose. In Bums, a labor union purporting to represent security guards at a Lockheed Martin plant sued the company providing" }, { "docid": "4665911", "title": "", "text": "U.S. Stucco contracts with many of the same general contractors with which Unlimited Systems previously contracted. The two EIFS project managers for U.S. Stucco previously worked for Unlimited Systems; indeed, all U.S. Stucco employees previously worked for Unlimited Systems. US Stucco employees use the same tools that they used when they were working for Unlimited Systems. Finally, U.S. Stucco uses vehicles and equipment that Unlimited Systems used. At the time of the evidentiary hearing, much of the content on U.S. Stucco’s web site was identical to content that had appeared on Unlimited Systems’ website. One of the projects listed on the U.S. Stucco website was Berkshire Plaza. See Ex. 8 to Mem. in Support of Pls.’ Mot. to Enforce Judgment [doc. # 17-9] at 2. Berkshire Plaza was the project on which Plaintiffs worked for Unlimited Systems, and which formed the basis of Plaintiffs’ lawsuit against Unlimited Systems. Another project listed on U.S. Stucco’s website—identified as “Hampton Inn, VT”— included the description “Unlimited Systems LLC was hired to fix and repair EIFS.” See id. at 3. While Mr. Pszczola claimed at the evidentiary hearing that his webmaster had erred in using the Unlimited Systems web pages for the U.S. Stucco website, the webmaster did not testify, and as of the day of the evidentiary hearing, the web pages were still online even though Plaintiffs had focused a great deal of attention on those web pages in their briefing. II. In the Second Circuit, the test for successor liability under the FLSA remains unresolved. In this ease, there are three options: the traditional common law successor liability rule and exceptions; the broader “substantial continuity” standard that the Supreme Court has endorsed in some federal labor law cases; and the Connecticut state common law standard. Although in this case the Court ultimately need not decide which test applies, the Court will set forth all three standards. A. Under traditional common law rules, a corporation that purchases the assets of another corporation is generally not liable for the seller’s liabilities. See New York v. Nat’l Serv. Indus., Inc., 460 F.3d 201, 209 (2d" }, { "docid": "4665920", "title": "", "text": "v. Whitaker House Coop., Inc., 366 U.S. 28, 33, 81 S.Ct. 933, 6 L.Ed.2d 100 (1961)). When faced with questions of successor liability under the FLSA and other employee-protection statutes, several courts outside the Second Circuit have applied versions of the substantial continuity test for successor liability endorsed by the Supreme Court in the NLRA context. See Steinbach, 51 F.3d at 846-47 (applying a substantial continuity standard and determining that appellee was a successor, but ultimately holding that the goals of the statute and broader equity principles weighed against imposition of liability for the predecessor’s FLSA violations in that case); Chao v. Concrete Mgt. Resources, L.L.C., No. 08-2501-JWL, 2009 WL 564381 (D.Kan. Mar. 5, 2009) (FLSA); Brock v. LaGrange Equip. Co., No. CV 86-0-170, 1987 WL 39105 (D.Neb. July 14, 1987) (FLSA); see also Sullivan v. Dollar Tree Stores, Inc., 623 F.3d 770, 781-83 (9th Cir. 2010) (FMLA); EEOC v. G-K-G, Inc., 39 F.3d 740, 748 (7th Cir.1994) (ADEA); Leib v. Georgia-Pacific Corp., 925 F.2d 240, 244-45 (8th Cir.1991) (Vietnam Era Veterans’ Readjustment Assistance Act of 1974); Bates v. Pac. Maritime Ass’n, 744 F.2d 705, 709-10 (9th Cir.1984) (Title VII); Trujillo v. Longhorn Mfg. Co., Inc., 694 F.2d 221, 225 (10th Cir.1982) (Title VII). While the courts that have applied a substantial continuity standard to determine successor liability in the federal labor law context do not all define the standard in exactly the same way, the various incarnations of the substantial continuity test are based on the principle that “[t]he inquiry is not merely whether the new employer is a successor in the strict corporate-law sense of the term.” See Sullivan, 623 F.3d at 781 (quotation marks omitted). Although the Second Circuit has not designated a standard for determining successor liability for FLSA violations, courts in the Eastern District of New York that have dealt with successor liability under the FLSA have applied New York’s common law successor liability test, as implemented by the Second Circuit in the CERCLA context post Bestfoods. See Vasquez v. Ranieri Cheese Corp., No. 1:07cv464 (ENV)(VVP), 2010 WL 1223606, at *10 (E.D.N.Y. Mar. 26, 2010);" }, { "docid": "4665927", "title": "", "text": "the court applied the traditional common law mere continuation exception, but application of the Connecticut’s “continuity of enterprise” version the exception supported a different conclusion). See generally Beriguette v. Innovative Waste Sys., Inc., No. CV054006895, 2009 WL 2450773, at *3 (Conn.Super.Ct. July 6, 2009) (finding no showing of a “mere continuation” where the two companies “maintain[ed] their own separate, pre-existing businesses,” different employees did different jobs under different supervisors, and the two businesses were “run ... out of separate locations using their pre-existing business practices”). III. Under Second Circuit precedent, it is not entirely clear which standard this Court should apply to determine successor liability under FLSA. First, it is not settled whether the Court should apply the Connecticut test, or a federal rule. Second, if the Court should apply a federal rule, it is not settled whether the Court should apply the substantial continuity approach used in the NLRA context, or the traditional common law standard. As the Second Circuit has noted, “[i]n the absence of congressional guidance on the issue of what law to apply,” the Court should “look to the ... test enunciated by the Supreme Court in United States v. Kimbell Foods, Inc. [440 U.S. 715, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979) ]” Nat’l Serv. Indus. II, 460 F.3d at 207 (citation and quotation marks omitted; first alteration in original). “[T]he essence of [that] test is ‘whether the relevant federal interest warrants displacement of state law.’” Id. (quoting Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 692, 126 S.Ct. 2121, 165 L.Ed.2d 131 (2006)). There is no reason for the Court to conclude that application of the Connecticut successor liability standard would be contrary to the purposes of the FLSA—the relevant federal policy. That said, U.S. Stucco is the successor in interest to Unlimited Systems under any of the three standards—the Connecticut rule, the substantial continuity test, and the traditional common law rule. Therefore, in this case, the Court need not decide which successor liability standard governs. There are several reasons why U.S. Stucco is liable as a successor to Unlimited Systems under any" }, { "docid": "4665918", "title": "", "text": "law is to be replaced simply because a plaintiffs cause of action is based upon a federal statute.’ ” Bestfoods, 524 U.S. at 63, 118 S.Ct. 1876 (citation omitted). The Second Circuit took the Supreme Court’s Best-foods holding to mean that in Betkoski, it had incorrectly “adopt[ed] a special [successor liability] rule for use in CERCLA cases,” see Nat’l Serv. Indus. I, 352 F.3d at 685-86, and concluded that the substantial continuity doctrine was not “part of the federal common law for CERCLA purposes.” Id. at 687. However, the Second Circuit also acknowledged that “[i]n Best-foods, the Supreme Court expressly declined to decide whether courts should apply state or federal common law under CERCLA.” Id. at 687 n. 1. When the Second Circuit revisited successor liability under CERCLA in National Services Industries I and II, it was able to avoid deciding whether state or federal common law applied because it found that New York’s successor liability rule was virtually identical to the traditional common law rule. See id.; Nat’l Serv. Indus. II, 460 F.3d at 203. The Second Circuit has not decided whether the substantial continuity standard used in the NLRA context also applies in the FLSA context. See Kaur v. Royal Arcadia Palace, Inc., 643 F.Supp.2d 276, 289 n. 10 (E.D.N.Y.2007). The FLSA itself does not address the issue of liability for successor employers. See Steinbach v. Hubbard, 51 F.3d 843, 845 (9th Cir.1995). However, the Second Circuit has observed that the FLSA has a “ ‘remedial’ purpose,” and that “Congress intended [the statute] to ‘have the widest possible impact in the national economy.’” See Barfield v. N.Y. City Health & Hosp. Corp., 537 F.3d 132, 142 (2d Cir.2008) (citation omitted). Therefore, in the context of determining whether an employee-employer relationship exists for the purposes of the statute, the Second Circuit has taken a “flexible” approach, id. at 141-42, and has noted that the Supreme Court “has instructed that the determination of whether an employer-employee relationship exists for the purposes of the FLSA should be grounded in ‘economic reality rather than technical concepts.’ ” Id. at 141 (quoting Goldberg" }, { "docid": "20402784", "title": "", "text": "a basis for successor liability on the part of Cañizales for their New York Labor law and common law claims. Thus, Plaintiffs consent to the dismissal of claims 2, 3, 6 and 7 as against Cañizales. (Plaintiffs’ Memorandum of Law in Opposition to Defendant Canizales’s Motion for Summary Judgment, Dkt. No. 149, (“PL Opp.”) at 1.) However, Plaintiffs contend that there are, at a minimum, genuine disputes of material fact precluding summary judgment that Cañizales is jointly and severally liable with SCFAL as a successor under FLSA. A. Potential Successor Liability of SCFAL The Second Circuit has not delineated ■what the proper test for successor liability should be in the FLSA context. Cañizales argues that the Court should apply the traditional common law test for successor liability applied in New-York, while Plaintiffs argue that the Court should apply the broader “substantial continuity” test applied by federal courts in most labor and employment contexts. Resolution of this question is necessary, as it is potentially dispositive of the motion. 1. Traditional Test Under the traditional common law test applied in New York, there can be little dispute that Cañizales would not be liable as a successor. “Under both New York law and traditional common law, a corporation that purchases the assets of another corporation is generally not liable for the seller’s liabilities.” New York v. Nat’l Serv. Indus., Inc., 460 F.3d 201, 209 (2d Cir.2006) [“NSI”] (citations omitted). There are four exceptions to this rule: (1) where the successor expressly or impliedly assumed the predecessor’s tort liability, (2) where there was a consolidation or merger of seller and purchaser; (3) where the purchasing corporation was a mere continuation of the selling corporation; or (4) where the transaction is entered into fraudulently to escape such obligations. Id. (citations omitted). This case does not fall within any of these four exceptions. There is no allegation that the APA was entered into fraudulently to escape any obligations, and in light of the provisions of the APA setting forth which liabilities were and were not transferred, there can be no dispute that SCFAL did not expressly" }, { "docid": "16440944", "title": "", "text": "derivative liability-which “displacéis] or fundamentally alter[s] common-law standards of limited liability.” Id. at 70, 118 S.Ct. 1876. Following Bestfoods, the Second Circuit in New York v. Nat’l Servs. Indus., Inc., 352 F.3d 682 (2d Cir.2003), rejected the argument that federal common law provides the standards for successor liability in a CERCLA action. Instead of the federal common law, standard of “substantial continuity,” the court applied the state common law rule of “mere continuation,” reasoning as follows: In considering the substantial continuity test,, we take from Bestfoods the principle that when determining whether liability under CERCLA passes from one corporation to another, we must apply common law rules and not create CERCLA-specific rules.... [T]here is some prior precedent for the substantial continuity rule and the rule is generally presented as a variant of the mere continuation exception. However, the substantial continuity test is not a sufficiently well established part of the common law of corporate liability to satisfy Bestfoods ’ dictate that common law must govern.... Within federal law, the substantial continuity doctrine is well established in the area of labor law. See, e.g., Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 43-45, 107 S.Ct. 2225, 96 L.Ed.2d 22 (1987). However, the labor law cases are particular to the labor law context and therefore have not been and cannot easily be extended to other areas of federal common law.... Perhaps if the substantial continuity doctrine were widely adopted among the states, it might be considered absorbed into federal common law and thus applied under CERCLA pursuant to the reasoning in Bestfoods in whatever states had not adopted it. However, at present the doctrine has been adopted by only a handful of states.... We thus find that the substantial continuity doctrine is not a part of general federal common law and, following Bestfoods, should not be used to determine whether a corporation takes on CERCLA liability as the result of an asset purchase. Id. at 685-87; see also United States v. Davis, 261 F.3d 1, 54 (1st Cir.2001) (rejecting argument that federal “substantial continuity” test should apply to successor" }, { "docid": "4665912", "title": "", "text": "3. While Mr. Pszczola claimed at the evidentiary hearing that his webmaster had erred in using the Unlimited Systems web pages for the U.S. Stucco website, the webmaster did not testify, and as of the day of the evidentiary hearing, the web pages were still online even though Plaintiffs had focused a great deal of attention on those web pages in their briefing. II. In the Second Circuit, the test for successor liability under the FLSA remains unresolved. In this ease, there are three options: the traditional common law successor liability rule and exceptions; the broader “substantial continuity” standard that the Supreme Court has endorsed in some federal labor law cases; and the Connecticut state common law standard. Although in this case the Court ultimately need not decide which test applies, the Court will set forth all three standards. A. Under traditional common law rules, a corporation that purchases the assets of another corporation is generally not liable for the seller’s liabilities. See New York v. Nat’l Serv. Indus., Inc., 460 F.3d 201, 209 (2d Cir.2006) (“Nat’l Serv. Indus. II”). There are four common exceptions to this general rule: (1) the purchaser expressly or impliedly assumed the seller’s tort liability; (2) there was a consolidation or merger of the seller and purchaser; (3) the purchasing corporation was a mere continuation of the selling corporation; or (4) the transaction was entered into fraudulently to escape obligations related to the seller’s liabilities. See id. A purchasing corporation may be deemed a “mere continuation” of the seller when only one corporation exists following the transfer of assets from the selling corporation to the purchasing corporation, and there is “identity of stock, stockholders, and directors between the successor and predecessor corporations.” See New York v. Nat’l Serv. Indus., Inc., 352 F.3d 682, 685 (2d Cir.2003) (“Nat’l Serv. Indus. I”) (citation and quotation marks omitted). A court may conclude that there has been a “de facto merger” of the two corporations if it finds: “(1) continuity of ownership; (2) cessation of ordinary business and dissolution of the [seller] as soon as possible; (3) assumption by" } ]

[ { "docid": "10524329", "title": "", "text": "MollisoN, Judge: The plaintiff in.this case imported into the United States certain coated fabrics, consisting of a rayon base fabric, coated with polyvinyl chloride material. The collector of customs found that there was no dutiable enumeration in the tariff act applicable to the said merchandise, and, by virtue of the similitude provision in paragraph 1559(a) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1954, 68 Stat. 1137 (19 U.S.C. § 1001, paragraph 1559(a)), classified the merchandise under the provision in paragraph 1537 (b) of the said act, as modified by T.D. 51802, for— Manufactures of india rubber or gutta-percha, or of which these substances or either of them is the component material of chief value, not specially provided for, taking duty at the rate of 1214 per centum ad valorem. The protest claims are for duty at the rate of 10 per centum ad valorem under the provision in paragraph 907 of the said act, as modified by T.D. 52739, for— Filled or coated cotton cloths not specially provided for, or, alternatively, for duty at the same rate under the nonenumerated manufactured articles provision in paragraph 1558 of the act, as modified by T.D. 52739 and T.D. 52827. The material was imported in bales and is apparently 36 inches wide and is in long lengths. Some of it was colored black and some yellow, but, regardless of its color, the material is basically the same in each case, that is to say, it is a polyvinyl chloride synthetic material on a rayon backing. The record establishes that the merchandise is waterproof and that it is used after importation in the manufacture of “industrial rain-wear,” that term being used to distinguish the resultant product from everyday rainwear on the basis that it is sold only to companies or organizations for use within plants, as for guards, or to municipalities, as for police officers. In such use, the material is cut and sewn, i.e., tailored, into garments, and, because of the nature of the polyvinyl chloride, the seams can be electronically welded in addition to being" } ]

[ { "docid": "12197913", "title": "", "text": "Rich, Judge. This appeal is from the judgment of the United States Customs Court, 74 Cust. Ct. 121, C.D. 4595, 396 F. Supp. 748 (1975), granting appellee-importer’s motion for summary judgment and denying the Government’s cross-motion for summary judgment. The Customs Court sustained appellee’s claim that the imported synthetic rubber footwear, imported in 1962 and 1963 and classified as “Articles * * * composed wholly or in part of carbon,” are properly classified as “synthetic rubber articles.” We affirm. The Imported Articles Appellee’s “statement of material facts as to which [it] * * * contends there is no genuine issue to be tried,” annexed to its motion for summary judgment, reads: * * * the merchandise at bar consists of black colored articles in chief value of synthetic rubber variously described as synthetic rubber boots, overshoes, artics [sic], sandals and clogs. The articles are in chief value of synthetic rubber and the carbon contained in them adds substantial additional qualities, such as reinforced tensile strength, abrasion resistance and tear resistance in addition to pigmentation. In its cross-motion, the Government adopted this statement, with the elaboration that * * * the merchandise the subject of this dispute contains carbon in amounts intentionally introduced for the purpose of adding substantial additional qualities to the footwear * * *. Statutory Provisions The Government classified the merchandise under paragraph 216 of the Tariff Act of 1930, as modified by T.D. 51802: 216 Articles or wares composed wholly or in part of carbon or graphite, wholly or partly manufactured, not specifically provided for. 15% ad val. The Customs Court held that the merchandise is properly classifiable under paragraph 1558 of the Tariff Act of 1930, as modified by T.D. 54108: 1558 All articles manufactured, in whole or in part, not specially provided for: Synthetic rubber and synthetic rubber articles * * * ... 8Vz% ad val. Customs Court Opinion The court relied heavily on the opinion in Rettinger Raincoat Mfg. Co. v. United States, 57 CCPA 119, C.A.D. 989, 427 F.2d 1258 (1970). After quoting from Rettinger extensively, the court concluded (footnote omitted): If rainwear" }, { "docid": "14982573", "title": "", "text": "classifiable under paragraph 1537(b) supra, as “ [m] anufactures of india rubber or gutta-percha, * * * [o]ther” at the rate of 12% per centum ad valorem on a basis of value other than the American selling price appraisement. The relevant statute, paragraph 1537(b), Tariff Act of 1930, as modified, T.D. 53865, provides in part as follows: “Manufactures of india rubber or gut-ta-percha, or of which these substances or either of them is the component material of chief value, not specially provided for (except *■ * . Boots, shoes, or other footwear, wholly or in chief value of india rubber ............12%% ad val. NOTE: The duty on the foregoing articles is to be calculated on the basis specified in T.D. 46158. Other............12%% ad val.” The plaintiff is a Japanese trading company which, at the time of the importations in 1960 and 1961, was importing footwear from its parent company in Japan. Plaintiff’s sole witness, Mr. Sam Garfinkel, testified that he was employed by the plaintiff as a sales manager, and identified plaintiff’s illustrative exhibit 1 as an article the same in all material respects as the waders designated on the invoices before the court. Being familiar with the manner of use of the merchandise, he testified that it is used by fishermen “casting in the surf, and going into the surf.” (R.8) It was “[u]sed primarily for fishing” and covered the body “[r]ight from the bottom of the feet right up to the chest.” (R.8) Mr. Garfinkel had never seen the article used in any other way. Referring to the merchandise imported by the plaintiff at the time of the importations, he testified that “it wasn’t only chest high waders. It was everything in the footwear line.” (R.9) The defendant called two witnesses, Mr. Robert T. Frazza, a buyer of footwear for all the branch stores of Abercrombie & Fitch, and Mr. Joel K. Wechsler, assistant general manager of the sporting goods division of the Converse Rubber Company. Mr. Frazza testified that in the course of his duties he had bought and worn waders similar to those in question. He" }, { "docid": "22952477", "title": "", "text": "Wilson, Judge: The merchandise involved in this protest is described on the invoice as “Vulkollan Polyester Isocyanate Strips.” The imported material was classified under paragraph 28(a) of the Tariff Act of 1930, as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, T.D. 52739, as a coal-tar synthetic resin or resin-like product, and assessed with duty at the rate of 22y2 per centum ad valorem, plus 31/2 cents per pound. The importer claims the material properly classifiable by reason of the similitude clause in paragraph 1559(a), as amended under paragraph 1537(b) of the act, as modified by the Japanese Protocol to the General Agree ment on Tariffs and Trade, T.D. 53865, and TJD. 53877, at the rate applicable to manufactures of rubber, other, and dutiable at the rate of 12y2 per centum ad valorem. Paragraph 28 (a), as modified, supra, reads as follows: Synthetic phenolic resin and all resin-like products prepared from phenol, cresol, phthalie anhydride, coumarone, indene, or from any other article or material provided for in paragraph 27 or 1651, Tariff Act of 1930, all these products whether in a solid, semisolid, or liquid condition, when obtained, derived, or manufactured in whole or in part from any of the products provided for in paragraph 27 or 1651, Tariff Act of 1930_3%(á per lb. and 22%% ad val. Paragraph 1537(b), as modified, supra, insofar as applicable to this case, reads as follows: Manufactures of india rubber or gutta-percha, or of which these substances or either of them is the component material of chief value, not specially provided for * * *: ******* Other-12%% ad val. Paragraph 1559(a), as amended, the similitude clause, provides as follows: Bach and every imported article, not enumerated in this Act, which is similar in the use to which it may be applied to any article enumerated in this Act as chargeable with duty, shall be subject to the same rate of duty as the enumerated article which it most resembles in the particular before mentioned; * * *. The only question for determination here is whether or not the Vulkollan" }, { "docid": "10564032", "title": "", "text": "Mollison, Judge: The above-enumerated protest is directed against the action of the collector of customs in assessing duty on merchandise, described on the invoices as “Isofoam X-Ray Positioning Blocks” and as “plastic foam X-Ray positioning blocks,” at the rate of 25 per centum ad valorem, by similitude under paragraph 1559(a) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1954 (68 Stat. 1137), to the manufactures of india rubber, not specially provided for, enumerated in paragraph 1537 (b) of the said act. The pertinent portion of the similitude statute is quoted in the margin. Plaintiff and defendant are in agreement that there is no direct enumeration in the tariff act which covers the imported articles, but plaintiff contends that there is no provision in the tariff act which is applicable to them by similitude under paragraph 1559(a), supra, and that, consequently, they are properly dutiable at the rate of 10 per centum ad valorem under the nonenumerated manufactured articles provision in paragraph 1558 of the said act, as modified by T.D. 52739 and T.D. 52827. The record contains the following facts: The articles at bar consist of sets of blocks of plastic foam material made in various shapes, such as disks, rectangular blocks, triangular blocks, etc., used to position patients during X-ray examinations. It appears that, in such situations, sandbags, balsa wood covered with cotton, and stuffed pillows of various shapes have also been used. According to the single witness who testified on behalf of the plaintiff, the material of which the blocks at bar were made does not cast any reflections or shadows on the X-ray plate, whereas the materials of which all other positioning blocks are made do cast such reflections or shadows. The witness testified that he had never known rubber articles to have been used for the same purpose as the articles at bar. No testimony or other evidence was offered by the defendant. Plaintiff contends that, on this state of the record, the presumption of correctness attaching to the collector’s classification, including the finding implicit therein that the imported articles" }, { "docid": "10524332", "title": "", "text": "used substantially the same way and in the same manner, nor can they be substituted in place of the imported articles. For these reasons, plaintiff contends that lack of similitude of use has been established. Plaintiff further contends that if the imported articles are similar in the use to which they may be applied to any article enumerated in the dutiable provisions of the tariff, they are similar to cotton cloth, when coated with a noncracking plastic material that can 'be welded, viz, coated cotton cloth, dutiable under paragraph 907. If similitude in that regard cannot be found, plaintiff alternatively contends that there being no direct tariff enumeration applicable to the merchandise, and no enumeration applicable to it by similitude, io is embraced by the catchall provision for nonenumerated manufactured articles in paragraph 1558, supra. Defendant contends that plaintiff has failed to establish by its evidence a prima facie case sufficient to overcome the presumption of correctness attaching to the collector’s classification. We are of the opinion that the defendant’s contention must be sustained. Plaintiff’s proof was directed toward establishing that the enumerated article, i.e., manufactures (including coated fabrics) in chief value of india rubber, is not similar, in the use to which it may be applied, to the imported nonenumerated article. This is not the requirement of the statute, which is to the effect that if the imported nonenumerated article is similar in the use to which it may be applied to an enumerated article, it shall be subject to the same rate of duty as the enumerated article. It seems clear from the evidence that the imported article possesses some features, i.e., weldability and non-cracking properties, which make it superior to the enumerated article in the use to which both may be applied, i.e., in the manufacture of industrial rainwear, but there is nothing in the record to indicate that, in the use to which the imported article may be applied, it does not achieve substantially the same use, and in substantially the same way, as the enumerated article. United States v. Godillot & Co., 3 Ct. Cust." }, { "docid": "16111137", "title": "", "text": "Baldwin, Judge, delivered the opinion of the court: The importer appeals from the decision and judgment of the United States Customs Court, First Division, which overruled its protests and sustained the classification of certain merchandise invoiced as “Wader Boots — Chest High” under paragraph 1537(b) of the Tariff Act of 1930 as “[b]oots, shoes or other footwear, wholly or in chief value of india rubber.” Nomura (America) Corp. v. United States, 62 Cust. Ct. 524, 299 F.Supp. 535 (1969). By presidential proclamation (T.D. 46158), classification of imported goods as “[bjoots, shoes, or other footwear” under paragraph 1537 (b), as was done in this case, requires duty to be assessed on the basis of American selling price appraisement, as defined in section 402a(g) of the 1930 Act. Appellant claimed below, and urges here, that the instant imported merchandise, while properly classified under paragraph 1537 (b), should have been dutied under the provision referring to other manufactures of india rubber or gutta percha. Under such circumstances, the goods would then be assessed duty at the same ad valorem rate but on a basis other than the American selling price appraisement. Appellant is a Japanese trading company which, at the time of the importations questioned here, was importing footwear from its parent company in Japan. In the trial below, appellant called a single witness and introduced an illustrative exhibit. The witness, Mr. Sam Garfinkel, identified that exhibit as chest high waders illustrative of the imported goods and in all material respects tire same as tire articles mentioned in the invoices before the court. He further testified that the articles were “[u]sed primarily for fishing”, to keep the users dry up to the chest and covered the body “ [r]ight from the bottom of the feet right up to the chest.” The government relies primarily on the testimony of two witnesses. The first, Mr. Robert Frazza, testified that he was a buyer of men’s and women’s footwear for Abercrombie & Fitch, a retailer with ten stores located throughout the United States. He had held that position for seven years and prior to that had" }, { "docid": "1800910", "title": "", "text": "He, Judge: The two protests in this case, consolidated for purposes of trial, pertain to merchandise imported from Japan and described on the invoices as “Wader Boots - Chest High.” It is made of rubber and consists of steel-shanked rubber boots at the bottom with attached rubber leggings rising to a high waist or chest. The merchandise was classified by the collector of customs under paragraph 1537 (b) of the Tariff Act of 1930, as modified, T.D. 53865, as “[bjoots, shoes, or other footwear, wholly or in chief value of india rubber.” Duty was assessed at the rate of 12% per centum ad valorem on the basis of American selling price appraisement as defined in section 402(e) of the Tariff Act of 1930, and as required by Presidential Proclamation 2027, T.D. 46158. Plaintiff contends that the importations, referred to as “waders,” are not “[bjoots, shoes, or other footwear,” within the intendment of paragraph 1537 (b), thus requiring the assessment of duty on the basis of American selling price appraisement. Rather, plaintiff asserts that the merchandise is properly classifiable under paragraph 1537 (b) supra, as “[mjanufactures of india rubber or gutta-percha, * * * [ojther” at the rate of 12% per centum ad valorem on a basis of value other than the American selling price appraisement. The relevant statute, paragraph 1537(b), Tariff Act of 1930, as modified, T.D. 53865, provides in part as follows: “Manufactures of india rubber or gutta-percha, or of which these substances or either of them is the component material of chief value, not specially provided for (except * * *): Boots, shoes, or other footwear, wholly or in chief value of india rubber_ 12%% ad val. NOTE: The duty on the foregoing articles is to be calculated on the basis specified in T.D. 46158. Other- 12%% ad val.” The plaintiff is a Japanese trading company which, at the time of the importations in 1960 and 1961, was importing footwear from its parent company in Japan. Plaintiff’s sole witness, Mr. Sam Garfinkel, testified that he was employed by the plaintiff as a sales manager, and identified plaintiff’s illustrative" }, { "docid": "22952485", "title": "", "text": "in a mold and is compressed under heat until it assumes the form of the imported article. This compression and heat, according to the importer, increases “the chemical and physical combination of the material.” The court further held, page 135, as follows: Here, the only question is whether these goods have been advanced beyond the stage of blocks, sheets, rods, tubes, or other forms of heeolith into articles, finished or unfinished. It must be quite obvious that they have; otherwise, there seems to be no reason for taking portions of the raw material, produced in blocks, as the evidence shows, softening the same, and compressing it under heat into the shapes now before us. * * * The appellate court in the American Hecolite Denture Corp. case, supra, further upheld the classification of the collector as compounds of pyroxylin made into finished or partly finished articles. See also United States v. Geo. S. Bush & Co., Inc., 16 Ct. Cust. Appls. 478, T.D. 43222, cited in the above quotation. The case of J. B. Henrigues, Inc. v. United States, 46 CCPA 54, C.A.D. 695, cited by the plaintiff in its brief, also supports the plaintiff’s claim in this case. On the basis of the record presented in this case, we are of the opinion and hold that the plaintiff has overcome the presumption of correctness attaching to the collector’s classification and on its part has shown by satisfactory and competent evidence that the imported material should be classified by similitude under paragraph 1537 (b) of the Tariff Act of 1930, as modified, supra, at the rate of 12% per centum ad valorem as “Manufactures of india rubber * * * Other,” as claimed. The protest is, therefore, sustained. Judgment will issue accordingly." }, { "docid": "10524330", "title": "", "text": "for, or, alternatively, for duty at the same rate under the nonenumerated manufactured articles provision in paragraph 1558 of the act, as modified by T.D. 52739 and T.D. 52827. The material was imported in bales and is apparently 36 inches wide and is in long lengths. Some of it was colored black and some yellow, but, regardless of its color, the material is basically the same in each case, that is to say, it is a polyvinyl chloride synthetic material on a rayon backing. The record establishes that the merchandise is waterproof and that it is used after importation in the manufacture of “industrial rain-wear,” that term being used to distinguish the resultant product from everyday rainwear on the basis that it is sold only to companies or organizations for use within plants, as for guards, or to municipalities, as for police officers. In such use, the material is cut and sewn, i.e., tailored, into garments, and, because of the nature of the polyvinyl chloride, the seams can be electronically welded in addition to being sewn, giving them additional strength and making them leakproof. According to the testimony of the purchasing agent of the importer, the material is very flexible and will not stiffen in cold weather, or crack, is strong, washable, resistant to mild acids and greases, and of light weight, all of which features make it particularly adaptable and suitable for industrial rainwear. It is the plaintiff’s contention that the merchandise is not similar, in the use to which it may be applied, to any manufacture wholly or in chief value of india rubber within the meaning of the similitude provisions of paragraph 1559(a), swpm. Plaintiff bases this contention upon the facts that the features of weldability and noncracking confer upon the imported material uses which are not possessed by materials made with the use of india rubber, or latex, in that the seams of such articles cannot be welded to make them absolutely watertight, and such articles are subject to cracking when cold temperatures are encountered. Consequently, plaintiff contends that the articles made with latex cannot be" }, { "docid": "16111142", "title": "", "text": "a distinctive name, it is no less a form of “boot” or “boots” within the intendment of the tariff laws. There can be no doubt of the applicability of the rule that an eo nomine statutory designation of an article, without limitation or contrary legislative inent, judicial decision, or administrative practice, includes all forms of the article. Astra Trading Corp. v. United States, 56 Cust. Ct. 555, 561, C.D. 2703 (1966); Nootka Packing Co., et al. v. United States, 22 CCPA 464, 470 T.D. 47464 (1935). In view of the foregoing, the court concludes that the imported merchandise, invoiced as “Wader Boots — Chest High,” was properly classified under paragraph 1537(b) of the Tariff Act of 1930, as modified by T.D. 53865 as “[b]oots, shoes, or other footwear, wholly or in chief value of india rubber.” sji ij: s*: % sji ^ As in all other cases involving a protest of the collector’s classification, there is a presumption that the classification is correct. F. H. Kaysing v. United States, 49 CCPA 69, 71, C.A.D. 798 (1962). The plaintiff bears the burden of establishing that the classification is erroneous and that the claimed classification is correct. Novelty Import Co. Inv. v. United States, 53 CCPA 28, 33, C.A.D. 872 (1966); United States v. Victoria Gin Co., Inc., et at., 48 CCPA 33, 35, C.A.D. 759 (1960); United States v. Gardel Industries, 33 CCPA 118, 121, C.A.D. 325 (1946). To tbis well founded opinion we feel we can add little. The judgment of the Customs Court is therefore affirmed. The relevant statute, paragraph 1537(b), Tariff Act of 1930, as modified, T.D. 53865, provides in part as follows : Manufactures of india rubber or gutta-percha, or of which these substances or either of them is the component material of chief value, not specially provided for (except * * *) : Boots, shoes, or other footwear, wholly or in chief value of india rubber_ 12%% ad val. Note: The duty on the foregoing articles is to be calculated on the basis specified in T.D. 46158. Other 12%% ad val." }, { "docid": "1800911", "title": "", "text": "is properly classifiable under paragraph 1537 (b) supra, as “[mjanufactures of india rubber or gutta-percha, * * * [ojther” at the rate of 12% per centum ad valorem on a basis of value other than the American selling price appraisement. The relevant statute, paragraph 1537(b), Tariff Act of 1930, as modified, T.D. 53865, provides in part as follows: “Manufactures of india rubber or gutta-percha, or of which these substances or either of them is the component material of chief value, not specially provided for (except * * *): Boots, shoes, or other footwear, wholly or in chief value of india rubber_ 12%% ad val. NOTE: The duty on the foregoing articles is to be calculated on the basis specified in T.D. 46158. Other- 12%% ad val.” The plaintiff is a Japanese trading company which, at the time of the importations in 1960 and 1961, was importing footwear from its parent company in Japan. Plaintiff’s sole witness, Mr. Sam Garfinkel, testified that he was employed by the plaintiff as a sales manager, and identified plaintiff’s illustrative exhibit 1 as an article the same in all material respects as the waders designated on the invoices before the court. Being familiar with the manner of use of the merchandise, he testified that it is used by fishermen “casting in the surf, and going into the surf.” (R. 8) It was “[u]sed primarily for fishing” and covered the body “[r]ight from the bottom of the feet right up to the chest.” (R. 8) Mr. Garfinkel had never seen the article used in any other way. Referring to the merchandise imported by the plaintiff at the time of the importations, he testified that “it wasn’t only chest high waders. It was everything in the footwear line.” (R. 9) The defendant called two witnesses, Mr. Robert T. Frazza, a buyer of footwear for all the branch stores of Abercrombie & Fitch, and Mr. Joel K. Wechsler, assistant general manager of the sporting goods division of the Converse Rubber Company. Mr. Frazza testified that in the course of his duties he had bought and worn waders similar" }, { "docid": "15608835", "title": "", "text": "provided for.” The protest claim as to each type of article is for duty at the rate of 8% per centum ad valorem under the provision in paragraph 1658 of the said act, as modified by T.D. 54108, for “Synthetic rubber and synthetic rubber articles.” The protests have been submitted for decision upon stipulation of counsel which, in addition to setting forth the foregoing facts, states that— * * * The charcoal grey articles contain less than 1% carbon; the black articles contain between 5% and 9% carbon; the remaining colors contain no carbon. * * * the primary reason for the carbon in the black articles is for the purpose of producing the black color, and adds no other property to the merchandise. * * * the charcoal grey merchandise liquidated by the collector as articles in part carbon under Paragraph 216 of the Tariff Act at 15%, is presently classified as liquidated by the collector by similitude to rubber under Paragraph 1559/ 1537(b) at 12%%. * * * the merchandise which is the subject matter of the instant proceeding is similar in use to rubber rainwear. Counsel for the plaintiff, in the brief filed in its behalf, contends that the provision in paragraph 1558 of the tariff act, as modified, for “Synthetic rubber and synthetic rubber articles” is an eo nomine provision; that it is not modified by a “not specially provided for” clause, as are the two competing provisions in paragraphs 216 and 1537(b) ; and that the stipulated description of the merchandise brings it within the designation contained in paragraph 1558. Counsel for the defendant, in the brief filed in its behalf, concedes that as to the articles which are not in part of carbon, i.e., those assessed under paragraph 1537 (b) by similitude, the contention of the plaintiff for duty under the provision for synthetic rubber articles in paragraph 1558 is correct. However, with respect to the articles to which carbon was added, counsel for the defendant contends that the application of the rule of relative specificity requires that they be classified under the provision" }, { "docid": "10524333", "title": "", "text": "proof was directed toward establishing that the enumerated article, i.e., manufactures (including coated fabrics) in chief value of india rubber, is not similar, in the use to which it may be applied, to the imported nonenumerated article. This is not the requirement of the statute, which is to the effect that if the imported nonenumerated article is similar in the use to which it may be applied to an enumerated article, it shall be subject to the same rate of duty as the enumerated article. It seems clear from the evidence that the imported article possesses some features, i.e., weldability and non-cracking properties, which make it superior to the enumerated article in the use to which both may be applied, i.e., in the manufacture of industrial rainwear, but there is nothing in the record to indicate that, in the use to which the imported article may be applied, it does not achieve substantially the same use, and in substantially the same way, as the enumerated article. United States v. Godillot & Co., 3 Ct. Cust. Appls. 128, T.D. 32382. The fact that it does the same job better does not make it dissimilar for the purpose of the similitude statute. Further, even assuming that plaintiff’s evidence established that india rubber-coated material would not be substituted for the imported plastic-coated material in the use to which they are applied, there is nothing in the record to show that the plastic-coated material could not be substituted for the rubber-coated material, and, indeed, the record indicates that this is the fact. Insofar as capability of substitution is a requirement for classification under the similitude statute (Pickhardt v. Merritt, 132 U.S. 252, 33 L. ed. 353), the requirement is that the imported article shall be capable of being substituted for the enumerated article, and not vice versa. The record in the case at bar seems to support the finding of such capability of substitution inherent in the collector’s classification. On the record presented, the protest claims are overruled, and judgment will issue accordingly. So far as pertinent, paragraph 1659(a),, supra, reads as foUows :" }, { "docid": "22683685", "title": "", "text": "Rao, Judge: On September 15, 1960, there was enacted into law a congressional definition and interpretation of the provision in paragraph 907 of the Tariff Act of 1930, for “waterproof cloth, wholly or in chief value of cotton or other vegetable fiber, whether or not in part of India rubber.” This amending statute, section 2, Public Law 86-795, provides as follows: In order to insure a correct interpretation of the provision “waterproof cloth” in paragraph 907, Tariff Act of 1930, it is hereby declared that it was and is the true intent and meaning of paragraph 907 to limit the term “waterproof”, when applied to cloth, “wholly or in chief value of cotton or other vegetable fiber, whether or not in part of India rubber”, to cloths of a kind generally used in the manufacture of articles which are designed to afford protection against water to the extent expected in raincoats, protective sheeting, dress shields, umbrellas, and similar articles. Even when cloth possesses water repelling characteristics, it is not classifiable as waterproof cloth within the meaning of paragraph 907, Tariff Act of 1930, unless it is of a kind generally used in the manufacture of articles of the class specified in the preceding sentence. The present action is the first occasion for judicial consideration of the scope and effect of this new language. It arises by way of a protest filed against the collector’s assessment of duty at the rate of 22y2 per centum ad valorem, on an importation of cotton velveteens, which he classified as twill back velveteens, valued at over $1.11% per square yard, pursuant to the provisions of paragraph 909 of the Tariff Act of 1930, as modified by the Japanese Protocol to the General Agreement on Tariffs and Trade, 90 Treas. Dec. 234, T.D. 53865, supplemented by Presidential notification, 90 Treas. Dec. 280, T.D. 53877. It is the contention of the plaintiff that its merchandise falls within the intendment of the revised provision for waterproof cloth, and that, therefore, it is dutiable at only 11 per centum ad valorem, as provided in said paragraph 907, as" }, { "docid": "12170759", "title": "", "text": "Landis, Judge: Defendant moves for rehearing and an order vacating and setting aside the judgment entered August 16, 1967, in J. M. Rodgers Co., Inc. v. United States, 59 Cust. Ct. 91, C.D. 3084. The relief defendant seeks is an amended judgment overruling the protest. While this matter comes up as a motion for rehearing, there are no new facts to be heard. What defendant’s memorandum in support of the motion does is restate arguments previously considered and discussed in our decision in Rodgers, supra. There we held that the collector’s classification under paragraph 1539(b), Tariff Act of 1930, as modified, being concededly wrong and, in the absence of any evidence of another tariff paragraph directly classifying black synthetic raincoats, they were properly dutiable by similitude in use (paragraph 1559, as amended) to raincoats of india rubber under paragraph 1539(b), as modified. Defendant, in its trial brief, argued a question of possible direct classification of black vinyl raincoats under paragraph 216, as modified, as articles wholly or in part of carbon, not specially provided for. Defendant is grieved that we held it was defendant’s burden to prove such asserted possible direct classification under paragraph 216 before plaintiff need meet that issue. We adhere to our previous ruling against defendant in this respect. One would expect defendant to take comfort in the fact that plaintiff has now filed reply joining in the motion for rehearing to the extent of conceding that the coloring agent in the black vinyl film of the raincoats is carbon black the same as in Weather-Rite Sportswear Co., Inc. v. United States, 49 Cust. Ct. 180, Abstract 66910, which held black carbon colored raincoats dutiable under paragraph 216. To the contrary, defendant’s memorandum in opposition to the concession is to point out that plaintiff cannot have judgment under paragraph 216 because there is no protest claim under paragraph 216. Faced with plaintiff’s additional cross-motion to amend the protest to claim under paragraph 216, defendant opposes the motion contending it is premature and prejudicial to defendant’s motion for rehearing. Defendant’s argument appears to be purely technical since we" }, { "docid": "10524331", "title": "", "text": "sewn, giving them additional strength and making them leakproof. According to the testimony of the purchasing agent of the importer, the material is very flexible and will not stiffen in cold weather, or crack, is strong, washable, resistant to mild acids and greases, and of light weight, all of which features make it particularly adaptable and suitable for industrial rainwear. It is the plaintiff’s contention that the merchandise is not similar, in the use to which it may be applied, to any manufacture wholly or in chief value of india rubber within the meaning of the similitude provisions of paragraph 1559(a), swpm. Plaintiff bases this contention upon the facts that the features of weldability and noncracking confer upon the imported material uses which are not possessed by materials made with the use of india rubber, or latex, in that the seams of such articles cannot be welded to make them absolutely watertight, and such articles are subject to cracking when cold temperatures are encountered. Consequently, plaintiff contends that the articles made with latex cannot be used substantially the same way and in the same manner, nor can they be substituted in place of the imported articles. For these reasons, plaintiff contends that lack of similitude of use has been established. Plaintiff further contends that if the imported articles are similar in the use to which they may be applied to any article enumerated in the dutiable provisions of the tariff, they are similar to cotton cloth, when coated with a noncracking plastic material that can 'be welded, viz, coated cotton cloth, dutiable under paragraph 907. If similitude in that regard cannot be found, plaintiff alternatively contends that there being no direct tariff enumeration applicable to the merchandise, and no enumeration applicable to it by similitude, io is embraced by the catchall provision for nonenumerated manufactured articles in paragraph 1558, supra. Defendant contends that plaintiff has failed to establish by its evidence a prima facie case sufficient to overcome the presumption of correctness attaching to the collector’s classification. We are of the opinion that the defendant’s contention must be sustained. Plaintiff’s" }, { "docid": "15608834", "title": "", "text": "Oliver, Chief Judge: The merchandise the subject of these protests consists of rainwear made of synthetic rubber, i.e., rainwear in chief value of synthetic rubber. The said rainwear was colored yellow, red, orange, olive drab, charcoal grey, or black. The articles of colors, other than charcoal grey or black, were assessed with duty at the rate of 12% per centum ad valorem, by similitude under the provisions of paragraph 1559(a), as amended, of the Tariff Act of 1930, to the “manufactures of india rubber or gutta-percha, or of which these substances or either of them is the component material of chief value, not specially provided for,” enumerated in paragraph 1537(b) of the said act, as modified by T.D. 53865 and T.D. 53877. The charcoal grey or black rainwear was assessed with duty at the rate of 15 per centum ad valorem under the provision in paragraph 216 of the said act, as modified by T.D. 51802, for “Articles or wares composed wholly or in part of carbon or graphite, partly or wholly manufactured, not specially provided for.” The protest claim as to each type of article is for duty at the rate of 8% per centum ad valorem under the provision in paragraph 1658 of the said act, as modified by T.D. 54108, for “Synthetic rubber and synthetic rubber articles.” The protests have been submitted for decision upon stipulation of counsel which, in addition to setting forth the foregoing facts, states that— * * * The charcoal grey articles contain less than 1% carbon; the black articles contain between 5% and 9% carbon; the remaining colors contain no carbon. * * * the primary reason for the carbon in the black articles is for the purpose of producing the black color, and adds no other property to the merchandise. * * * the charcoal grey merchandise liquidated by the collector as articles in part carbon under Paragraph 216 of the Tariff Act at 15%, is presently classified as liquidated by the collector by similitude to rubber under Paragraph 1559/ 1537(b) at 12%%. * * * the merchandise which is the" }, { "docid": "22952478", "title": "", "text": "1651, Tariff Act of 1930, all these products whether in a solid, semisolid, or liquid condition, when obtained, derived, or manufactured in whole or in part from any of the products provided for in paragraph 27 or 1651, Tariff Act of 1930_3%(á per lb. and 22%% ad val. Paragraph 1537(b), as modified, supra, insofar as applicable to this case, reads as follows: Manufactures of india rubber or gutta-percha, or of which these substances or either of them is the component material of chief value, not specially provided for * * *: ******* Other-12%% ad val. Paragraph 1559(a), as amended, the similitude clause, provides as follows: Bach and every imported article, not enumerated in this Act, which is similar in the use to which it may be applied to any article enumerated in this Act as chargeable with duty, shall be subject to the same rate of duty as the enumerated article which it most resembles in the particular before mentioned; * * *. The only question for determination here is whether or not the Vulkollan strips here involved, which are conceded to have been made from a synthetic resin or resin-like product, are properly classifiable under paragraph 28 (a), supra, as coal-tar synthetic resin or resin-like products, or whether the imported strips before exportation had been processed into finished material dedicated to use as squeegee blades, in which case the imported Vrdkollan strips would no longer be synthetic resin or resin-like products in a solid condition such as is provided for in paragraph 28 (a), supra, but would then constitute new articles, advanced beyond that stage, possessing a new name, properties, and use and, as such, dutiable under paragraph 1537 (b), supra, as manufactures of “india rubber * * * Other,” as claimed. The only witness called to testify was Mr. Jan Seidner, owner of the importing company. A representative sample of the merchandise was received in evidence as plaintiff’s illustrative exhibit 1. The imported material, according to the testimony of plaintiff’s witness, was identical in composition to plaintiff’s exhibit 1, except that exhibit 1 is 2 inches by three-eighths" }, { "docid": "16672852", "title": "", "text": "sold to a few other customers. Mr. Greenfield further testified that he has also seen silicon-coated paper and crepe papers used for the same purpose as this polyvinyl chloride film, but not any cotton articles. His customer, the Technical Tape Corp., had previously used a crepe paper and made the change to plaintiff’s creped Genotherm, when it was suggested that it might be superior for that company’s use. It was the opinion of the witness that his crepe Genotherm was preferred over silicon-coated crepe paper, because it had proven less costly. It seems clear, from the foregoing review of the record in this case, that plaintiff has affirmatively established, at least prima facie, through the uncon-tradicted testimony of the witness Greenfield, that a similarity of use exists between crepe paper and the subject merchandise, as release materials in the manufacture of pressure sensitive adhesive substances. Whether such similarity is legally sufficient to establish similitude within the contemplation of paragraph 1559 (a), supra, is the question which must be determined. Counsel for plaintiff relies upon the record and, in particular, the statement of the witness to the effect that “a cotton article is not used in the manner that Exhibit 4 is used, such as in the production of tapes as Exhibit 5,” to urge that the collector’s classification by similitude to manufactures of cotton has been negatived. Counsel for defendant contends, however, that the presumption of correctness of the collector’s decision has not been overcome, for the reason that plaintiff has failed to establish “that polyvinyl chloride film of the specifications of the merchandise in issue is not used in the United States in a manner in which a cotton article was or is used.” We are inclined to agree with counsel for defendant in this respect. It must be remembered that the collector is presumed to have found the existence of every fact necessary to sustain his classification (United, States v. Lilly & Co. and Parke, Davis & Co., 14 Ct. Cust. Appls. 332, T.D. 41970; United States v. I. Magnin & Co., Inc., 21 CCPA 77, T.D. 46394)." }, { "docid": "14982572", "title": "", "text": "RE, Judge: The two protests in this case, consolidated for purposes of trial, pertain to merchandise imported from Japan and described on the invoices as “Wader Boots — Chest High.” It is made of rubber and consists of steel-shanked rubber boots at the bottom with attached rubber leggings rising to a high waist or chest. The merchandise was classified by the collector of customs under paragraph 1537(b) of the Tariff Act of 1930, as modified, T.D. 53865, as “[b]oots, shoes, or other footwear, wholly or in chief value of india rubber.” Duty was assessed at the rate of 12% per centum ad valorem on the basis of American selling price appraisement as defined in section 402(e) of the Tariff Act of 1930, and as required by Presidential Proclamation 2027, T.D. 46158. Plaintiff contends that the importations, referred to as “waders,” are not “[b]oots, shoes, or other footwear,” within the intendment of paragraph 1537(b), thus requiring the assessment of duty on the basis of American selling price appraisement. Rather, plaintiff asserts that the merchandise is properly classifiable under paragraph 1537(b) supra, as “ [m] anufactures of india rubber or gutta-percha, * * * [o]ther” at the rate of 12% per centum ad valorem on a basis of value other than the American selling price appraisement. The relevant statute, paragraph 1537(b), Tariff Act of 1930, as modified, T.D. 53865, provides in part as follows: “Manufactures of india rubber or gut-ta-percha, or of which these substances or either of them is the component material of chief value, not specially provided for (except *■ * . Boots, shoes, or other footwear, wholly or in chief value of india rubber ............12%% ad val. NOTE: The duty on the foregoing articles is to be calculated on the basis specified in T.D. 46158. Other............12%% ad val.” The plaintiff is a Japanese trading company which, at the time of the importations in 1960 and 1961, was importing footwear from its parent company in Japan. Plaintiff’s sole witness, Mr. Sam Garfinkel, testified that he was employed by the plaintiff as a sales manager, and identified plaintiff’s illustrative exhibit 1" } ]

[ { "docid": "18118615", "title": "", "text": "defendants in their official capacity, as agents of the WSSC, for damages and injunctive relief based upon the Fourteenth Amendment. Defendants have asserted that this action is barred by the Eleventh Amendment since it is in actuality a suit against a state. As an, alternative, defendants contend the action will not lie because the Fourteenth Amendment does not grant the recovery of monetary damages. The Eleventh Amendment to the Constitution provides The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. Although the Eleventh Amendment by its terms prohibits only federal court suits against a state by citizens of another state, it has long been established that a state is equally immune from federal court suits brought by its own citizens. Parden v. Terminal Ry., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964); Great No. Life Ins. Co. v. Read, 322 U.S. 47, 64 S.Ct. 873, 88 L.Ed. 1121 (1944); Fitts v. McGhee, 172 U.S. 516, 19 S.Ct. 269, 43 L.Ed. 535 (1899); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). See generally, Comment, Private Suits Against States in the Federal Courts, 33 U.Chi.L.Rev. 331 (1966). But while the Eleventh AmendM ment prohibits the use of federal courts in suits against a state without its consent, this prohibition does not extend to a municipality or a municipal agency. Graham v. Folsom, 200 U.S. 248, 26 S.Ct. 245, 50 L.Ed. 464 (1906); Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766 (1890); Chesapeake Bay Bridge & Tunnel Dist. v. Lauritzen, 404 F.2d 1001 (4th Cir. 1968); Atkins v. City of Charlotte, 296 F.Supp. 1068 (W.D.N.C.1969); Brown v. Marshall Cty., Ky., 394 F.2d 498 (6th Cir. 1968); N. M. Paterson & Sons, Ltd. v. City of Chicago, 176 F.Supp. 323 (E.D.Ill.1959); James v. Duckworth, 170 F.Supp. 342 (E.D.Va.), aff’d, 267 F.2d 224 (4th Cir.), cert. denied, 361 U.S." } ]

[ { "docid": "5613663", "title": "", "text": "513 F.2d 347 (6th Cir. 1975); McNeill v. Butz, 480 F.2d 314, 326 (4th Cir. 1973). The defendants respond, however, that the court is powerless to enter such a decree because insofar as they are sued in their official capacity they are not “persons” within the meaning of § 1983, the predicate for jurisdiction under 28 U.S.C. § 1343. Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973); City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). See generally, 87 Harv.L.Rev. 252, 258-61 (1973). By analogy to cases decided under the Eleventh Amendment, e. g., Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), they argue that this suit is, in substance, an action against the school board, because it is against them as representatives of the school board. Since the school board is not a “person,” Singleton v. Vance County Board of Education, 501 F.2d 429 (4th Cir. 1974), they continue, the action must be dismissed for lack of jurisdiction. We recently canvassed this entire field in Burt v. Board of Trustees, 521 F.2d 1201 (4th Cir. 1975). It was there held that the members of the Board of Trustees are “persons” within the meaning of § 1983 and that, sued in that capacity, they have no sovereign immunity. The decision in Burt forecloses the defendants’ jurisdictional challenge. IV. Thomas asserts finally that the district court erred in denying his request for reasonable attorney’s fees. It is not suggested that the defendants proceeded in bad faith or that Congress has specifically provided for attorney’s fees in cases such as this. Rather, counsel argues that if fees are not recoverable, potential plaintiffs are likely to be discouraged from bringing actions to vindicate constitutional rights, which actions benefit the public. This is, of course, the “private attorney general” theory recently rejected by the Supreme Court and by this Court en banc. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95" }, { "docid": "5613662", "title": "", "text": "date of the decision.” 464 F.2d at 538; see also Burt v. Board of Trustees, 521 F.2d 1201 (4th Cir. 1975); McNeill v. Butz, 480 F.2d 314, 326 (4th Cir. 1973). Similarly, as a result of the Board’s second hearing, Mr. Thomas is no longer entitled to reinstatement; indeed, it would be entirely inappropriate to reinstate him pending yet another hearing, as he requests. Nevertheless, we agree that the district court erred in refusing to award back pay from the date of his improper termination to the time of his full hearing before the Board. Such an award is an integral part of the equitable remedy of reinstatement, Burt v. Board of Trustees, 521 F.2d 1201 (4th Cir. 1975); Robinson v. Lorillard Corporation, 444 F.2d 791, 802 (4th Cir. 1971); Smith v. Hampton Training School, 360 F.2d 577, 581 n. 8 (4th Cir. 1966), to which Thomas was technically entitled prior to the second hearing. See also Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Soni v. Board of Trustees, 513 F.2d 347 (6th Cir. 1975); McNeill v. Butz, 480 F.2d 314, 326 (4th Cir. 1973). The defendants respond, however, that the court is powerless to enter such a decree because insofar as they are sued in their official capacity they are not “persons” within the meaning of § 1983, the predicate for jurisdiction under 28 U.S.C. § 1343. Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973); City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). See generally, 87 Harv.L.Rev. 252, 258-61 (1973). By analogy to cases decided under the Eleventh Amendment, e. g., Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), they argue that this suit is, in substance, an action against the school board, because it is against them as representatives of the school board. Since the school board is not a “person,” Singleton v. Vance County Board of Education, 501 F.2d" }, { "docid": "18000950", "title": "", "text": "instead of school boards apparently was made and rejected in Monroe. The Supreme Court had previously reached the merits of substantive claims in two cases in which municipalities were defendants, see Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776 (1955); Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943), but the Court in Monroe rejected the existence of any sub silentio ruling on the issue which it decided: In a few cases in which equitable relief has been sought, a municipality has been named, along with city officials, as defendants where violations of 42 U.S.C. § 1983 were alleged. See, e. g., Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324; Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776. The question dealt with in our opinion was not raised in those cases, either by the parties or by the Court. Since we hold that a municipal corporation is not a “person” within the meaning of § 1983, no inference to the contrary can any longer be drawn from those cases. Monroe v. Pape, 365 U.S. at 191 n. 50, 81 S.Ct. at 486. Thus, the presence of parties other than the municipalities in Holmes and Douglas enabled the Court to reach the merits of the plaintiffs’ claims despite the municipality-“person” issue. Likewise in each of the cases argued by plaintiffs here, the school board was only one of a number of defendants, various school officials having been joined as individuals or in their official capacities. For example, in Cohen the Superintendent of the Chesterfield County Schools was a party defendant. Cohen v. Chesterfield County School Board, 326 F.Supp. 1159 (E.D.Va.1971), rev’d, 474 F.2d 395 (4th Cir. 1973) (en banc), rev’d, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974). Similarly, LaFleur sued not only the Cleveland Board of Education as an entity, but also the members of the Board, the Superintendent, the Assistant Superintendent-Personnel, the Supervisor-Secondary Organizations and the Principal of the school from which she" }, { "docid": "8952911", "title": "", "text": "not be sued under § 1983, it could not be sued at all in a federal district court. Moor v. County of Alameda clearly puts that matter to rest. Moreover, a clear answer to those who contend that Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) gives instruction to the effect that the Monroe holding should be expanded to cover municipalities and other governmental entities on some theory of sovereign immunity or protection under the Eleventh Amendment, is some of the language in Edelman, itself. In footnote 12 on page 667, 94 S.Ct. on page 1358, the Court said: “ . . . As may be seen from Griffin’s [Griffin v. School Bd., 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256] citation of Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766 (1890), a county does not occupy the same position as a State for purposes of the Eleventh Amendment. See also Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). The fact that the county policies executed by the county officials in Griffin were subject to the commands of the Fourteenth Amendment, but the county was not able to invoke the protection of the Eleventh Amendment, is no more than a recognition of the long-established rule that while county action is generally state action for purposes of the Fourteenth Amendment, a county defendant is not necessarily a state defendant for purposes of the Eleventh Amendment.” In Lincoln County v. Luning, supra, the case referred to in the footnote quoted above, the Supreme Court said: “With regard to the first objection, it may be observed that the records of this court for the last 30 years are full of suits against counties; and it would seem as though by general consent the jurisdiction of the federal courts in such, suits has become established. But irrespective of this general acquiescence, the jurisdiction of the circuit courts is beyond question. The Eleventh Amendment limits the jurisdiction only as to suits against a state. It was said" }, { "docid": "2675490", "title": "", "text": "County Board of Education, 501 F.2d 429 (4th Cir. 1974). . On the other hand, defendants on appeal raised the possibility that the “equitable” award might be barred by the eleventh amendment under Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). While we disagree with their contention, see ÍÍ 4 infra, counsel would hardly have raised the point if they thought the judgment went against defendants in their individual capacities. Such a jurisdictional defense would make sense only if counsel for defendants had assumed that the back pay award would be drawn from the Board’s or the county’s funds by the trustees acting officially. We think, therefore, that the question simply cannot be resolved on this appeal. . Without considering situations in which suits against subdivisions might be barred under the eleventh amendment, we agree that, as here, it is “not a bar to an award that may be satisfied out of a county’s treasury.” Incarcerated Men of Alien County Jail v. Fair, 507 F.2d 281, 287 (6th Cir. 1974). See Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766 (1890); Griffin v. County School Board, supra. . While ordinarily back pay is not awarded except as part of an equitable decree of reinstatement, we think that in this type of case, given the dominant purpose to protect an employee’s property interest from procedural unfairness, an award of back pay alone is within the sound discretion of an equity court. Horton v. Orange County Bd. of Educ., 464 F.2d 536 (4th Cir. 1972). See Garcia v. Daniel, 490 F.2d 290, 292 (7th Cir. 1973) (back pay not proper where no “property” interest is at stake). See also Burton v. Cascade Union Dist. High School No. 5, 512 F.2d 850 (9th Cir. 1975). WINTER, Circuit Judge (concurring and dissenting): I agree with Judge Craven that the present record simply does not permit us to determine with certainty whether plaintiff’s action was at law, in which event it was error for defendant’s timely demand for a jury trial not to have been honored," }, { "docid": "18741733", "title": "", "text": "Memorandum and Opinion: SINGLETON, District Judge. The above-styled-and-numbered cause concerns two former school teachers in the Houston Independent School District who were not recommended for reemployment for the fall semester, 1971, school year. JURISDICTIONAL QUESTIONS The defendants have raised two jurisdictional arguments. The case was brought pursuant to both 42 U.S.C. § 1983 and 28 U.S.C. § 1331, alleging $50,000 each, actual damages, and $100,000 each, punitive damages. The defendant has asserted that since the Fifth Circuit has held that “[a] school district, under Texas law, is of the nature of a municipality,” Harkless v. Sweeny Independent School District, 427 F.2d 319, 321 (5th Cir. 1970), and the Supreme Court has held that a municipality is not a person for purposes of 42 U.S.C. § 1983 for either law or equity cases, Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), the court lacks jurisdiction under 1983. The defense ignores two arguments. The suit is not only against the school district but also against the superintendent of schools in his official capacity. He is a person for 1983 purposes, for injunctive relief at the very least. Monroe v. Pape, supra; City of Kenosha v. Bruno, supra; Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964); Harkless v. Sweeny, supra; Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). In the second place, there has never been a Fifth Circuit or Supreme Court case holding that a suit would not lie against a municipality, and by implication a school district, under 28 U.S.C. § 1331. The concurring opinions of Justices Brennan and Marshall in City of Kenosha v. Bruno, supra, clearly states that if $10,000 or more is in controversy then § 1331 jurisdiction is available. At least for purposes of determining the jurisdictional question the court has determined that there is sufficient amount in controversy. Whether or not that amount can be recovered is another question. The" }, { "docid": "2675483", "title": "", "text": "supra, at 430 and 434 (Winter, J., concurring and dissenting). 3. To the extent the complaint seeks equitable relief under § 1983 against the members of the Board in their official capacities it may be prosecuted, for such municipal officers are “persons” within the meaning of § 1983. Harper v. Kloster, 486 F.2d 1134, 1138 (4th Cir. 1973); Incarcerated Men of Allen Co. Jail v. Fair, 507 F.2d 281, 287-88 (6th Cir. 1974); Ybarra v. City of Town of Los Altos Hills, 503 F.2d 250, 253 (9th Cir. 1974). For cases in which equitable relief under § 1983 was allowed against defendants in their capacity as municipal officials, see, e. g., Griffin v. County School Board, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964); Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943), cited in Monroe v. Pape, 365 U.S. 167, 191, n. 50, 81 S.Ct. 473. But see Moye v. City of Raleigh, 503 F.2d 631, 635, n. 11 (4th Cir. 1974) (caveat); Bennett v. Gravelle, 323 F.Supp. 203, 211 (D.Md.1971), aff’d on other grounds, 451 F.2d 1011 (4th Cir.), cert. petition dismissed, 407 U.S. 917, 92 S.Ct. 2451, 32 L.Ed.2d 692 (1972). 4. Prosecution of this suit is not barred by the eleventh amendment. While the actions of counties and other subdivisions of a state generally constitute “state action” for purposes of the fourteenth amendment, a county or other state subdivision defendant “is not necessarily a state defendant for purposes of the Eleventh Amendment.” Edelman v. Jordan, 415 U.S. 651, 667, n. 12, 94 S.Ct. 1347, 1358 (1974) (emphasis added). 5. To the extent that the suit proceeds in equity against the Board itself, assuming a proper jurisdictional basis other than § 1983, and/or against the defendants in their official capacities, it is clearly within the power of the district court to award back pay as an equitable remedy without the requirement of tri al by jury. Smith v. Hampton Training School, 360 F.2d 577, 581, n. 8 (4th Cir. 1966) (en banc), cited in Curtis v. Loether, 415 U.S." }, { "docid": "11602108", "title": "", "text": "A. Subject Matter Jurisdiction. Subject matter jurisdiction over the claims against the individual defendants under Section 1983, Title 42, United States Code, exists under Section 1343(3) and (4), Title 28, United States Code. However, Section 1983, Title 42, United States Code, does not create a claim for relief against the defendant City, because a municipal corporation is not a “person” within the meaning of that term as employed in Section 1983. City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Because Section 1983 does not provide a remedy against the City, Section 1343(3), Title 28, United States Code, does not provide a jurisdictional basis for an action against the City because that provision is linked to statutory claims for relief based on the Civil Rights Acts. Herzbrun v. Milwaukee County, 504 F.2d 1189 (7th Cir. 1974); Ybarra v. Town of Los Altos Hills, 503 F.2d 250 (9th Cir. 1974); Patterson v. City of Chester, 389 F.Supp. 1093 (E.D.Pa. 1975) . See also: United Farm, of Fla. H. Proj., Inc. v. City of Delray Beach, 493 F.2d 799, 802 n. [1] (5th Cir. 1974). Although subject matter jurisdiction does not exist over plaintiff’s claims against the City under Section 1343(3) and (4), Title 28, United States Code, a number of federal courts have ruled in cases involving claims of denial of procedural due process in employment termination that jurisdiction over a political subdivision can be based on the general federal question statute, Section 1331, Title 28, United States Code, and on the Fourteenth Amendment to the Constitution of the United States, if the $10,000 amount in controversy requirement is satisfied. Hostrop v. Bd. of Jr. College District No. 515, 523 F.2d 569 (7th Cir. 1975); Roane v. Callisburg Independent School District, 511 F.2d 633 (5th Cir. 1975); Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d 31 (3rd Cir. 1974), vacated on other grounds, 421" }, { "docid": "3461247", "title": "", "text": "is before us, and the District Court stated in making the award that “the public which has benefited thereby should bear the financial responsibility” for Appellees’ suit. Furthermore, the injunctions were drawn against Appellants in their official capacities, as they were made to run against the defendants,- “their agents, employees, assigns, successors in office, and all those in active concert or participation therewith.” It is clear, in short, that the District Court did not intend to reach the individual assets of Sheriff Fair but meant the award to be satisfied out of public funds. Appellants invoke their “sovereign immunity” as a bar to the award. The Eleventh Amendment, though a bar to awards of attorney fees that will be satisfied out of a state’s treasury, Jordon v. Gilligan, 500 F.2d 701 (6th Cir. 1974), is not a bar to an award that may be satisfied out of a county’s treasury. Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766 (1890). See Edelman v. Jordan, 415 U.S. 651, 667 n. 12, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Thus, there is no constitutional bar to a federal court’s awarding attorney fees against a county and its officials. There is a statutory bar within § 1983, however, which prevents direct suits against municipalities under it. The Supreme Court decided in Moor v. County of Alameda, 411 U.S. 693, 710, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), that a county may not be directly sued under § 1983. See also City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Making Allen County directly liable for an attorney fees’ award, then, may not rest on § 1983 liability, since the District Court had no jurisdiction over the County under that statute. One other possible ground to hold the County directly liable might be a state claim that the County is vicariously liable for the good faith actions of its officials in the performance of their duties. This was one justification for" }, { "docid": "5118050", "title": "", "text": "Muzquiz v. City of San Antonio, 528 F.2d 499, 500-01 (5th Cir.) (en banc), appeal pending, 45 U.S.L.W. 3057 (1976), a matter which the court must consider even if not raised by the parties. City of Kenosha v. Bruno, 412 U.S. at 511, 93 S.Ct. 2222. After reviewing the case law on both sides of this issue, I reject the argument that I lack jurisdiction to hear a claim seeking recovery of back pay from Council members in their official capacity. The issue of whether and to what extent officials can be sued in their official capacity under § 1983 has not been definitively resolved. The majority of courts have held that officials can be sued in their official capacity for injunctive and declaratory relief because these officials are “persons” within the meaning of § 1983. See, e. g., Monell v. Department of Soc. Serv. of City of N. Y., 532 F.2d 259, 264 (2nd Cir. 1976), cert, granted, 429 U.S. 1071, 97 S.Ct. 807, 50 L.Ed.2d 789 (1977); Thurston v. Dekle, 531 F.2d 1264, 1269 (5th Cir. 1976); Burt v. Board of Trustees of Edgefield County School District, 521 F.2d 1201, 1204-06 (4th Cir. 1975); Incarcerated Men of Allen County Jail v. Fair, 507 F.2d 281, 287-88 (6th Cir. 1974); Ybarra v. City of Town of Los Altos Hills, 503 F.2d 250, 252-53 (9th Cir. 1974). The circuits disagree, however, as to whether officials can be sued in their official capacity for equitable monetary relief, e. g., restitution or back pay. Compare Burt v. Board of Trustees of Edgefield County School District, 521 F.2d at 1205; Incarcerated Men of Allen County Jail v. Fair, 507 F.2d at 287-88 with Monell v. Department of Soc. Serv. of City of N. Y., 532 F.2d at 264-67; Muzquiz v. City of San Antonio, 528 F.2d at 500-01. I recognize, of course, that § 1983 is available only against “persons,” but it is not disputed that an official is a person under the meaning of § 1983 and its jurisdictional implementation, 28 U.S.C. § 1343. The issue, therefore, is whether a court should" }, { "docid": "2675482", "title": "", "text": "Thus it is clear that the defendants’ demand for a jury trial should have been granted in what appar ently evolved into a suit against them in their individual capacities. The judgment must therefore be vacated and the case remanded for further proceedings with these instructions: 1. To the extent the complaint seeks relief against the Board of Trustees of the Edgefield County School District it must be dismissed because neither the district nor the Board is a “person” within the meaning of § 1983. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Singleton v. Vance County Board of Education, 501 F.2d 429 (4th Cir. 1974). But see Keckeisen v. Independent School District 612, 509 F.2d 1062 (8th Cir. 1975). 2. Plaintiff will be allowed to amend her complaint under Rule 15, Fed. R.Civ.P., to allege other possible bases of jurisdiction against the school board, qua board. See Singleton v. Vance County Board of Education, supra, at 430 and 434 (Winter, J., concurring and dissenting). 3. To the extent the complaint seeks equitable relief under § 1983 against the members of the Board in their official capacities it may be prosecuted, for such municipal officers are “persons” within the meaning of § 1983. Harper v. Kloster, 486 F.2d 1134, 1138 (4th Cir. 1973); Incarcerated Men of Allen Co. Jail v. Fair, 507 F.2d 281, 287-88 (6th Cir. 1974); Ybarra v. City of Town of Los Altos Hills, 503 F.2d 250, 253 (9th Cir. 1974). For cases in which equitable relief under § 1983 was allowed against defendants in their capacity as municipal officials, see, e. g., Griffin v. County School Board, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964); Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943), cited in Monroe v. Pape, 365 U.S. 167, 191, n. 50, 81 S.Ct. 473. But see Moye v. City of Raleigh, 503 F.2d 631, 635, n. 11 (4th Cir. 1974) (caveat); Bennett v. Gravelle," }, { "docid": "15556227", "title": "", "text": "on August 17, 1976. Memorandum decision reported at 426 F.Supp. 191 (W.D.N.Y. 1976). Appellees were awarded interim attorney fees. 426 F.Supp. 194 (W.D.N.Y.1977). Appellees’ motion to dismiss the City’s appeal was denied on November 8, 1976. 547 F.2d 7 (2d Cir. 1976). . Neither are municipalities subject to suit on the theory that they are liable under 42 U.S.C. § 1988 when in violation of provisions of state law. See Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1972). . See, e. g., Ybarra v. City of the Town of Los Altos Hills, 503 F.2d 250 (9th Cir. 1974) (town); Jorden v. Metropolitan Utilities District, 498 F.2d 514 (8th Cir. 1974) (utilities district); Mahaley v. Cuyahoga Metropolitan Housing Authority, 500 F.2d 1087 (6th Cir. 1974), cert. denied, 419 U.S. 1108, 95 S.Ct. 781, 42 L.Ed.2d 805 (1975) (housing authority). . Other circuit courts have disagreed with this conclusion. See, e. g., Keckeisen v. Independent School District, 509 F.2d 1062 (8th Cir.), cert. denied, 423 U.S. 833, 96 S.Ct. 57, 46 L.Ed.2d 51 (1975); Aurora Education Association East v. Board of Education, 490 F.2d 431 (7th Cir.), cert. denied, 416 U.S. 985, 94 S.Ct. 2388, 40 L.Ed.2d 762 (1974). . And individuals who are sued as surrogates for the state, but not component parts of the state. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). . When an equitable claim lodged against an official is equivalent to a claim seeking funds from the state treasury, it is barred as, in reality, a suit against the state. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). . These considerations are limited, of course, to actions seeking injunctive or declaratory relief when that relief is not equivalent to an action for damages brought against the state or city boards. Compare Gay Students Organization of the University of New Hampshire v. Bonner, 509 F.2d 652 (1st Cir. 1974); Adamian v. University of Nevada, 359 F.Supp. 825, 827-28, 834-35 (D.Nev.1973), rev’d on other grounds sub nom. Adamian v. Jacobsen, 523" }, { "docid": "2675484", "title": "", "text": "323 F.Supp. 203, 211 (D.Md.1971), aff’d on other grounds, 451 F.2d 1011 (4th Cir.), cert. petition dismissed, 407 U.S. 917, 92 S.Ct. 2451, 32 L.Ed.2d 692 (1972). 4. Prosecution of this suit is not barred by the eleventh amendment. While the actions of counties and other subdivisions of a state generally constitute “state action” for purposes of the fourteenth amendment, a county or other state subdivision defendant “is not necessarily a state defendant for purposes of the Eleventh Amendment.” Edelman v. Jordan, 415 U.S. 651, 667, n. 12, 94 S.Ct. 1347, 1358 (1974) (emphasis added). 5. To the extent that the suit proceeds in equity against the Board itself, assuming a proper jurisdictional basis other than § 1983, and/or against the defendants in their official capacities, it is clearly within the power of the district court to award back pay as an equitable remedy without the requirement of tri al by jury. Smith v. Hampton Training School, 360 F.2d 577, 581, n. 8 (4th Cir. 1966) (en banc), cited in Curtis v. Loether, 415 U.S. 189, 196, n. 13, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974). If Mrs. Burt does so pursue equitable relief, the district judge may reinstate the judgment he previously entered specifying that it run against the Board (again, assuming jurisdiction) and/or the defendants in their official capacities. In holding that he may so reinstate, we necessarily express our approval of: (1) the factual finding that the failure to rehire Mrs. Burt was proper except for the violation of her due process rights, i. e., that it was not racially motivated — we cannot on this record say that it was clearly erroneous; (2) the court’s refusal in its discretion to award, in “equity,” a sum which would be the present. equivalent of what Mrs. Burt would have received in the future in additional retirement benefits (given her life expectancy when she retired) had she been permitted to teach for those last two years and had then retired — approximately $25,000. The court stated that it did “not feel [such damages] should come within the scope of" }, { "docid": "978157", "title": "", "text": "against government administrators, monetary relief in the form of backpay to be awarded from public funds under the defendants’ control may be awarded as part of an equitable decree. See, e. g., Wellner v. Minnesota State Junior College Board, 487 F.2d 153, 156-57 (8th Cir. 1973); Cooley v. Board of Education of Forrest City School Dist., 453 F.2d 282 (8th Cir. 1972). Owen argues that he may recover backpay from the individual appellees in their official capacities as part of general equitable relief, even though the backpay award would be paid by the City, which could not be held directly liable for backpay under section 1983, because it is not a “person” within the meaning of section 1983. This position has some support. See, e. g., Lytle v. Commissioners of Election of Union County, 541 F.2d 421, 426 (4th Cir. 1976), pet. for cert. filed, 44 U.S.L.W. 3739 (U.S. June 22, 1976); Burt v. Board of Trustees of Edgefield County School Dist., 521 F.2d 1201, 1205-06 (4th Cir. 1975); Incarcerated Men of Allen County Jail v. Fair, 507 F.2d 281, 288 (6th Cir. 1974); Dyson v. Lavery, 417 F.Supp. 103, 109 (E.D.Va.1976); Adamian v. University of Nevada, 359 F.Supp. 825 (D.Nev.1973), rev’d on other grounds sub nom. Adamian v. Jacobsen, 523 F.2d 929 (9th Cir. 1975); Developments in the Law: Section 1983 and Federalism, 90 Harv.L. Rev. 1133, 1197-99 (1977). Other courts have rejected this theory, however. They argue that a monetary award under section 1983, even if made part of equitable relief ordered in a suit against a city official, is really a judgment against the city, if the award is to be satisfied from city funds, and is therefore barred by City of Kenosha v. Bruno, supra, and Monroe v. Pape, supra. These cases draw an analogy to Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), which held that a request for retroactive welfare benefits, even if entitled “equitable restitution” and made part of an equitable decree in a suit against a state official, is in reality a suit against the state barred" }, { "docid": "19824487", "title": "", "text": "county, as a political subdivision of the state, does not usually enjoy the absolute immunity from retroactive monetary liability under the Eleventh Amendment that shields the state. Edelman v. Jordan, 415 U.S. 651, 667 n. 12, 94 S.Ct. 1347, 1357, 39 L.Ed.2d 662, 675 (1974); Hostrop v. Board of Jr. College Dist. No. 515, 523 F.2d 569, 577 (7th Cir. 1975); Burt v. Board of Trustees of Edgefield County School Dist., 521 F.2d 1201, 1205 (4th Cir. 1975); Hander v. San Jacinto Jr. College, 519 F.2d 273, 278 (5th Cir. 1975); Singer v. Mahoning County Bd. of Mental Retardation, 519 F.2d 748, 749 (6th Cir. 1975); Incarcerated Men of Allen County Jail v. Fair, supra, at 287, 288. Nevertheless, whether the county here would be immune under the Eleventh Amendment, while decided as a matter of federal law, will be based on considerations of state law concerning the nature of the county, its public funds affected, and its relationship to the subject matter of this action. Furthermore, the few express waivers of sovereign immunity by the State of Florida do not authorize actions for the recovery of back pay; neither is there any authority under Florida law for the payment of back pay out of the sheriff’s budget to deputies who might be reinstated. Op. Att’y Gen. Fla., 073-91 (1973). Second, plaintiff’s recovery of back pay, as retroactive compensation that would be drawn from county funds, is probably precluded by statutory immunity. A county, as a subdivision of the state, is not a person subject to the jurisdiction of the Court in an action under 42 U.S.C. Sec. 1983 for purposes of any relief, whether injunctive, declaratory, or compensatory. City of Kenosha v. Bruno, 412 U.S. 507, 513, 93 S.Ct. 2222, 2226, 37 L.Ed.2d 109, 116 (1973); Moor v. County of Alameda, 411 U.S. 693, 708, 710, 93 S.Ct. 1785, 1795-1796, 36 L.Ed.2d 596, 608-610 (1973); Monroe v. Pape, 365 U.S. 167, 192, 81 S.Ct. 473, 486, 5 L.Ed.2d 492, 507 (1961); Vick v. Texas Em ployment Commission, 514 F.2d 734, 737 (5th Cir. 1975) reh. en banc den. 520" }, { "docid": "11655469", "title": "", "text": "class, as well as named defendants. The motion is without merit and will be denied. Defendants may have confused the judicial gloss which 42 U.S.C. § 1983 has acquired with the prohibitions of the Eleventh Amendment. Regardless of what § 1983 means, our case concerns principally a cause of action under 42 U.S.C. § 2000e. While municipalities and counties are free from suit under § 1983, such political subdivisions of the state do not “occupy the same position as a State fov purposes of the Eleventh Amendment.” Edelman v. Jordan, 415 U.S. 651, 667 n. 12, 94 S.Ct. 1347, 1358, 39 L.Ed.2d 662 (1974). See also Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766 (1890); Griffen v. County School Board of Prince Edward County, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964). Defendant school boards fall within the same rule. Thus, assuming the Eleventh Amendment can bar a statutory action, where such statute was based on Congress’ power to enforce the Fourteenth Amendment, it is a “long-established rule that while [a school board’s] action is generally state action for the purposes of the Fourteenth Amendment, a [school board] is not necessarily a state defendant for purposes of the Eleventh Amendment.” Edelman v. Jordan, supra, 415 U.S. at 667 n. 12, 94 S.Ct. at 1358. The Sixth Circuit has not recognized the Eleventh Amendment as a jurisdictional bar to recovery of monetary awards against local school boards. See, e. g., LaFleur v. Cleveland Board of Education, 465 F.2d 1184 (6th Cir. 1972), aff'd, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Doyle v. Mt. Healthy City School District Board of Education, 529 F.2d 524 (6th Cir. 1975) (table), cert. granted, 425 U.S. 933, 96 S.Ct. 1662, 48 L.Ed.2d 174, 44 U.S.L.W. 3592 (April 19, 1976). Although the Eleventh Amendment may not have been discussed in either case, it is a matter of jurisdiction and would have to be raised sua sponte by the Court. It would be “inappropriate for the [Court of Appeals] to assume the existence of jurisdiction and then to" }, { "docid": "5118051", "title": "", "text": "1269 (5th Cir. 1976); Burt v. Board of Trustees of Edgefield County School District, 521 F.2d 1201, 1204-06 (4th Cir. 1975); Incarcerated Men of Allen County Jail v. Fair, 507 F.2d 281, 287-88 (6th Cir. 1974); Ybarra v. City of Town of Los Altos Hills, 503 F.2d 250, 252-53 (9th Cir. 1974). The circuits disagree, however, as to whether officials can be sued in their official capacity for equitable monetary relief, e. g., restitution or back pay. Compare Burt v. Board of Trustees of Edgefield County School District, 521 F.2d at 1205; Incarcerated Men of Allen County Jail v. Fair, 507 F.2d at 287-88 with Monell v. Department of Soc. Serv. of City of N. Y., 532 F.2d at 264-67; Muzquiz v. City of San Antonio, 528 F.2d at 500-01. I recognize, of course, that § 1983 is available only against “persons,” but it is not disputed that an official is a person under the meaning of § 1983 and its jurisdictional implementation, 28 U.S.C. § 1343. The issue, therefore, is whether a court should pierce this facial compliance with the requirements of § 1983 on the basis of a conclusion that equitable monetary relief obtained from an official in his official capacity is in effect a judgment against the underlying governmental entity and must be barred for lack of jurisdiction since that entity cannot be sued directly under § 1983. Those courts which have rejected this type of recovery analogize this issue to the construction given the Eleventh Amendment in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). In Edelman the Court held that the Eleventh Amendment barred a suit for retroactive welfare payments sought against a state official because the action was in reality a suit against the state since the requested relief would come out of the state treasury and not from the named defendant’s resources. It is clear that the Eleventh Amendment does not bar recoveries against counties, Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471, 479 (1977), and therefore the Edelman" }, { "docid": "6415978", "title": "", "text": "Education Law, the Board must save harmless members of the teaching and supervisory staffs of the University who are found to be liable for damages sustained in the discharge of duties within the scope of their employment. However, the City of New York controls the budget of the City University system and the state’s matching share of that budget is fixed by statute. Education Law § 6215. A judgment paid by the City University would therefore only have an ancillary effect on the state treasury. Gordenstein, supra, 381 F.Supp. at 721. That is not enough to invoke the protective cloak of the Eleventh Amendment. Edelman v. Jordan, 415 U.S. 651, 667-68, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Equally meritless is the contention of the defendants that, as far as damages against them as officials are concerned, they are not “persons” under section 1983. It has been held that a state is not a person within the meaning of section 1983. Meyer v. New York, 344 F.Supp. 1377, 1378 (S.D.N.Y.), aff’d, 463 F.2d 424 (2d Cir. 1972). Political subdivisions of states are also excluded from coverage. Monroe v. Pape, 365 U.S. 167, 191, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). However, it is by no means clear that damages may not be recovered from the defendants here in their official capacities merely because the City University performs a governmental function. The defendants rely on City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), for the proposition that an award of damages against the defendants as officials would be improper. Since that decision, however, the Supreme Court has reinstated an order granting back pay in Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974) rev’g 474 F.2d 395 (4th Cir. 1973), rev’g Cohen v. Chesterfield County School Board, 326 F.Supp. 1159 (E.D.Va.1971). In this district, back pay has been awarded after Kenosha for the dismissal of a New York City employee without due process. Vega v. Civil Service Commission, 385 F.Supp. 1376 (S.D.N.Y. 1974). See generally Lombard v." }, { "docid": "15556196", "title": "", "text": "is sought. City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). These holdings have been gradually expanded so as to exempt other kinds of municipal entities, states, and counties. The Supreme Court has not yet addressed the issue of whether school boards are “persons” within the meaning of § 1983. Mount Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 279, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). This court, however, has held that they are not to be so construed. Monell v. Department of Social Services of the City of New York, 532 F.2d 259 (2d Cir. 1976), cert. granted, 429 U.S. 1071, 97 S.Ct. 807, 50 L.Ed.2d 789 (1977). Whether state agencies, like the Board of Regents, are “persons,” is a more difficult matter to ascertain, and must be considered on a case by case basis. See, e. g. Forman v. Community Services, Inc., 500 F.2d 1246 (2d Cir. 1974), rev’d on other grounds sub nom. United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 95 S.Ct. 2051, 44 L.Ed.2d 621 (1975); 1 Moore's Federal Practice 10.62[9] n.24. But however this may be, the eleventh amendment to the United States Constitution acts as an independent impediment to suits against the states and their agencies. See Mount Healthy City School District Board of Education v. Doyle, supra, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471; Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). While municipal school boards and state boards of regents may be exempt from suit under § 1983, their members, sued in their official capacities, are not. Thus it is set-tied law in this circuit that “municipal and state officials, sued in their official capacities, are ‘persons’ within the meaning of § 1983 when they are sued for injunctive or declaratory relief.” Monell, supra, 532 F.2d at 264. In the case of states and their component agencies which are protected by the eleventh amendment as well as by §" }, { "docid": "2993341", "title": "", "text": "651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), that the Eleventh Amendment operates as a bar to a federal court’s awarding of retroactive welfare benefits where the payment of funds from the state treasury is required. However, footnote 12 of that opinion specifically stated that “a county does not occupy the same position as a state for purposes of the Eleventh Amendment”, 94 S.Ct. at 1358, 39 L.Ed.2d at 675, thus recognizing “the long established rule that while county action is generally state action for purposes of the Fourteenth Amendment, a county defendant is not necessarily a state defendant for purposes of the Eleventh Amendment.” Because of the unique governmental nature of the Consolidated City of Jacksonville which unites the functions of both city and county governmental units into one essentially county-wide municipality, the defendants, as elective city officials, are clearly outside the scope of any Eleventh Amendment bar under the authorities cited in Edelman v. Jordan, supra. See Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973); Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766 (1890). 383 F.Supp. at 1180, n. 19. Therefore, this Court holds that the recovery of attorneys’ fees against officials of the Consolidated City of Jacksonville is not barred by the Eleventh Amendment. Incarcerated Men of Allen County Jail v. Fair, 507 F.2d 281, 287 (6th Cir. 1974). . In footnote 46 of the Supreme Court’s opinion, there was an additional indication of the availability of the “bad faith” exception as a basis for recovery of attorneys’ fees: This Court’s summary affirmance of the decision in Sims v. Amos, 340 F.Supp. 691 (M.D.Ala.1972), aff’d, 409 U.S. 942 [93 S.Ct. 290, 34 L.Ed.2d 215] (1972), cannot be taken as an acceptance of a judicially created private attorney general rule. The District Court in Sims indicated that there was an alternative ground available —the bad faith of the defendants—upon which to base the award of fees. 340 F.Supp., at 694. See also Edelman v. Jordan, 415 U.S. 651, 670-671 [94 S.Ct. 1347, 1359-1360, 39 L.Ed.2d 662]" } ]

[ { "docid": "22409486", "title": "", "text": "The assets of such a corporation are a fund for the payment of its debts. If they are held by the corporation itself, and so invested as to be subject to legal process, they may be levied on by such process. If they have been distributed among stockholders, or gone into the hands of others than bond fide creditors or purchasers, leaving -debts of the corporation unpaid, such holders take the property charged with the trust in favor of creditors, which a court of equity will enforce, and compel the application of the property to the satisfaction of their debts. This has been often decided, and rests upon plain principles. In 2 Story’s Eq. Jur. § 1252, it is said,' “ Perhaps, to this same head of implied trusts upon presumed intention, (although it might equally well be deemed to fall under the head of implied trusts by operation of law,) we may refer that class of cases where the stock and other property of private corporations is deemed a trust fund for the payment of the debts of the corporation ; so that the creditors have a lien, or right of priority of payment on it, in preference to any of thé stockholders of the corporation. Thus, for example: “ The capital stock of an incorporated bank is. deemed a trust fund for all the debts of the corporation: and no stockholder can entitle himself to any dividend or share of such capital stock,, until all the debts are paid, and if the capital stock should be divided, leaving any debts unpaid, every stockholder, receiving his share of the capital stock, would, in- equity, be held liable pro raid to contribute to the discharge of such debts out of the fund in his own hands.” In conformity - with this is the doctrine held by this court in Mumma v. The Potomac Company, 8 Peters, 281. The cases of Wood v. Dummer, 3 Mason, 308; Wright v. Petrie, 1 Smedes & Marsh. 319; Nevitt v. Bank of Port Gibson, 6 Id. 513 ; Hightower v. Thornton et al. 8" } ]

[ { "docid": "21502423", "title": "", "text": "the transfer. Blaekmore v. Parkes, supra, at page 900. Whether the so-called “trust fund doctrine” be strictly followed or not, there can be no doubt, we think, that, where one corporation transfers all of its assets to another, and practically ceases to exist without having paid its debts, the purchasing corporation takes the property so transferred subject to a lien or charge in favor of the creditors of the selling corporation, which a court of equity will enforce. Luedecke v. Des Moines Cabinet Co., 140 Iowa, 223, 118 N. W. 456, 32 L. R. A. (N. S.) 616; 5 Thompson on Corporations, par. 6547 ; 7 Fletcher, Cyclopedia Corporations, par. 4757; R. R. Co. v. Howard, 7 Wall. 392, 409, 19 L. Ed. 117; Kansas City Ry. v. Guardian Trust Co., 240 U. S. 166, 36 S. Ct. 334, 60 L. Ed. 579; Lowther et al. v. Lowther Kauffman Oil & Coal Co., 75 W. Va. 171, 83 S. E. 49; Cole v. Millerton Iron Co., 133 N. Y. 164, 30 N. E. 847, 28 Am. St. Rep. 615; Baker Motor Vehicle Co. v. Hunter (C. C. A. 2d) 238 F. 894; Safety Car Lighting & Heating Co. v. U. S. Light & Heating Co. (D. C.) 2 F.(2d) 384. In B. & O. Tel. Co. v. Interstate Tel. Co. (C. C. A. 4th) 54 F. 50, this court had under consideration a ease in which it appeared .that the Baltimore & Ohio Railroad Company had sold the property of a telegraph company which it controlled, and had received and appropriated the proceeds of sale. In holding that the fund so derived could be reached by the other creditors of the telegraph company, the court, speaking through Judge Simonton, said: “The Baltimore & Ohio Railroad Company, using this control, sold the whole of the property operated, controlled, managed, and owned by the Baltimore & Ohio Telegraph Company to the Western Union Telegraph Company, and received and appropriated the proceeds of the sale. Thereupon the telegraph company became and was totally insolvent. As this telegraph company was a corporation, under the" }, { "docid": "22553346", "title": "", "text": "connection with the property of a corporation, the corporation is. an entity, distinct from its stockholders as from, its creditors. Solvent, it holds its property as any individual holds his, free from the touch of a creditor who has acquired no lien; free also from the touch of a stockholder who, though equitably interested in, has no legal right to, the property. Becoming insolvent, the equitable interest of the stockholders in the property, together with their conditional liability to the creditors, places the property in a condition of trust, first, for the creditors, •and then for the stockholders. Whatever of trust there is arises from the peculiar and diverse equitable ■ rights of the stockholders as against the corporation in' its property and their conditional liability to its creditors. It is rather a trust in the administration of the assets after possession by a court of equity than a trust attaching to the property, as such, for the direct benefit of either creditor or stockholder. Again, in the case of the Wabash, St. Louis & Pacific Railway v. Ham, 114 U. S. 587, it appeared that four railway corporations, owing debts, were consolidated under- authority of law, and, by the terms of the consolidation-agreement, the n.ew corporation was to protect the debts of the old. Subsequently, the new corporation executed a mortgage on all its ’ property, and in a contest between the mortgagees and the unsecured creditors of one of the constituent companies, the court held that the lien of the mortgagees was prior. In ■respect to this, Mr. Justice Gray (p. 594) thus -stated the law: “It was'contended that the property of the Toledo and Wabash Railway Company was a trust fund for all its creditors, and that upon the consolidation the Toledo, Wabash and Western Railway Company took the property of the Toledo and Wabash Railway Company charged with the payment of all its debts. The property of a corporation is doubtless a trust fund for the payment of its debts, in the sense, that when the corporation is lawfully dissolved and all its business wound up," }, { "docid": "22769966", "title": "", "text": "privileges granted to citizens of the State enacting it. Can a different principle apply, as between individual citizens of the several States, when the assets to be distributed are the assets of an insolvent private corporation lawfully engaged in business and having the power to contract with citizens residing in States other than the one in which it is located ? It is an established rule of equity that when a corporation becomes insolvent it is so far civilly dead that its property may be administered as a trust fund for the benefit of its stockholders and creditors, (Graham v. Railroad Co., 102 U. S. 148, 161) — not simply of stockholders and creditors residing in a particular State, but all stockholders and creditors of whatever State they may be citizens. In Wabash, St. Louis &c. Railway Co. v. Ham, 114 U. S. 587, 594, it was said that the property of a corporation was a trust fund for the payment of its debts, in the sense that when the corporation was lawfully dissolved and all its business wound up, or when it was insolvent, all its creditors were entitled in equity to have their debts paid out of the corporate property before any distribution thereof among the stockholders. In Hollins v. Brierfield Coal & Iron Co., 150 U. S. 371, 385, it was observed that a private corporation, when it becomes insolvent, holds its assets subject to somewhat the same kind of equitable lien and trust in favor of its creditors that exists in favor of the creditors of a partnership after becoming insolvent, and that in such case a lien and trust will be enforced by a court of equity in favor of creditors. These principles obtain, no doubt, in Tennessee, and will be applied by its courts in all appropriate cases betAveen citizens of that State, without making any distinction between them. Yet the courts of that State are forbidden, by the statute in question, to recognize the right in equity of citizens residing in other States to participate upon terms of equality Avith citizens of Tennessee" }, { "docid": "22172869", "title": "", "text": "Pacific Railway Co. v. Ham, 114 U. S. 587, 594, it was said by this court, speaking through Mr. J ustice Gray : “ The pro'perty of a corporation is doubtless a trust fund for the payment of its debts,'in the sense that when the corporation is lawfully dissolved and all its business wound, up, or when it is insolvent, all its creditors are entitled In equity to have their debts paid out. of the corporate property before any distribution thereof among the stockholders. It is also true, in the case' of a corporation, as in that of a- natural person, that any conveyance of property of the debtor, without authority of law, and in fraud of existing creditors, is void as against them.” Can the transactions between Richardson and the insolvent corporation of which he was largely the owner and controller, especially with respect to the claim he is urging in this catee, stand the test of the fairness and good faith which, as a director and stockholder, he owed to the corporation, its creditors and 'bona fide bondholders.? Ilis very first transaction with the corporation, by which he introduced himself into it as a stockholder, was an illegal and fraudulent act. We refer to the agreement on the part of the company to issue to Richardson 1250 shares of bonus stock. At the time this agreement was made and the stock issued in pursuance thereof, the statutes of Michigan provided: “ That it shall not be lawful for any railroad company, existing by virtue of the laws of this State, nor for any officer of any such company, to sell, dispose of, or pledge any shares in the capital stock of such company, nor to issue certificates of shares in the capital; stock of such company until the shares so sold, disposed /of,' or pledged, and the shares for which such certificates ar0 to be issued shall have been fully paid.” 2 Comp. Laws Mich. par. 7757. We have seen that all the acts of Richardson as director, stockholder, chairman of the executive committee and treasurer, all of" }, { "docid": "11764143", "title": "", "text": "of stock was withdrawn, so far as general' creditors were concerned, from the assets of the corporation. In that case we declared the doctrine to be well established, that the capital stock of a corporation, especially its unpaid subscriptions, constitutes a trust fund, for the benefit of its general creditors, and that its governing officers cannot, by agreement or other transaction with the stockholder, release him from his obligation to pay, to the prejudice of its creditors, except by fair and honest dealing, and for a valuable consideration. In the subsequent case of Sawyer v. Upton (91 U. S. 56), we had occasion to consider the same question, and there said: “ The capital stock of an incorporated company is a fund set apart for the payment of its debts. It is a substitute for the personal liability which subsists in private copartnerships. When debts are incurred, a contract arises with the creditors that it shall not be withdrawn or applied otherwise than upon their demands, until such demands are satisfied. The creditors have, a lien upon it in equity. If diverted, they may follow it as far as it can be traced, and subject it to the payment of their claims, except as against holders who have taken it bona fide for a valuable consideration and without notice. It is publicly pledged to those who deal with the corporation for their security. Unpaid stock is as much a part of this pledge, and as much a part of the assets of the company, as the cash which has been paid in upon it. Creditors have the same right to look to it as to anything else, and the same right to insist upon its payment as upon the payment of any other debt due the company. As regards creditors, there is no distinction between such a demand and any other assets which may form a part of the property and effects of tbe corporation.” The same doctrines are held in Upton v. Tribilcock, 91 U. S. 45, Webster v. Upton, id. 65; Hatch v. Dana, 101 id. 205. In" }, { "docid": "22553349", "title": "", "text": "that it cannot be sold, transferred, or mortgaged to bona fide purchasers for a valuable consideration, except subject to the liability of- being appropriated to pay that indebtedness. Such a doctrine has no existence.” In the case of Hawkins v. Glenn, 131 U. S. 319, 332, which wa$ an action brought by the trustee of a corporation against certain of its stockholders to recover unpaid subscriptions, and in which the defence of the statute of limitations was pleaded, Chief Justice Fuller referred to this matter in these words: “Unpaid subscriptions are assets, but have frequently been treated by courts of equity as if impressed with a 'trust sub modo, upon the view that, the corporation being insolvent, the existence of creditors subjects these liabilities to the rules applicable to funds to be accounted for as held in trust, and that, therefore, statutes of limitation do not commence to run in respect to them until the retention of the money has become adverse by a refusal to pay upon due requisition”’ These cases negative the idea of any direct trust or lien attaching to the property of a corporation in favor of its creditors, and at the same time are entirely consistent with those cases in which the assets of a corporation are spoken of as a trust fund; using the term in the sense that we have said it was used. The same idea of equitable lien and trust exists to some extent in the .case of partnership property. Whenever, a partnership becoming insolvent, a court of equity takes possession of its property, it recognizes the fact that in equity the partnership creditors have a right to payment out of those-funds in preference to individual creditors, as, well as superior to any claims of the partners themselves. And the partnership-property is, therefore, sometimes said, not inaptly, to be held in trust for the partnership creditors, or, that they have an equitable lien on such property. Yet, all that is meant by. such expressions is the existence of' an equitable right which will be enforced whenever a court of equity, at" }, { "docid": "22553348", "title": "", "text": "or when it is insolvent, all its creditors are entitled in equity to have their debts paid out of the corporate property before any distribution thereof among the stockholders. It is also true, in the case of a corporation, as in that of a natural person, that any conveyance of property of the debtor, without authority of law, and in fraud of existing creditors, is void as against them.” The case of Fogg v. Blair, 133 U. S. 534, 541, presented a .similar question, and this court, by Mr. Justice Field, observed: “We do not question the general doctrine invoked by the appellant, that the property of a railroad company is a trust fund for the payment of its debts, but do not pereeive any place for its application here. That doctrine only means that the property must first be appropriated to the payment of the debts'of the company, before any'portion of it can be distributed to the stockholders; it does not mean that the property is so affected by the indebtedness of the company that it cannot be sold, transferred, or mortgaged to bona fide purchasers for a valuable consideration, except subject to the liability of- being appropriated to pay that indebtedness. Such a doctrine has no existence.” In the case of Hawkins v. Glenn, 131 U. S. 319, 332, which wa$ an action brought by the trustee of a corporation against certain of its stockholders to recover unpaid subscriptions, and in which the defence of the statute of limitations was pleaded, Chief Justice Fuller referred to this matter in these words: “Unpaid subscriptions are assets, but have frequently been treated by courts of equity as if impressed with a 'trust sub modo, upon the view that, the corporation being insolvent, the existence of creditors subjects these liabilities to the rules applicable to funds to be accounted for as held in trust, and that, therefore, statutes of limitation do not commence to run in respect to them until the retention of the money has become adverse by a refusal to pay upon due requisition”’ These cases negative the idea" }, { "docid": "22932381", "title": "", "text": "rights of the stockholders as against the corporation in its property and their conditional liability to its creditors. It is rather a trust in the administration of the assets after possession by a court of equity than a trust attaching to the property, as such, for the direct benefit of either creditor or stockholder.” And also: “ The officers of a corporation act in a fiduciary capacity in respect to its property in their hárjds, and may be called to an account for fraud, or, sometimes, even mere mismanagement in respect thereto; but, as between itself and its creditors, the corporation is simply a debtor, and does not hold its property in trust, or subject to a lien in their favor, in any other sense than does an individual debtor. That is certainly the general rule, and if there be any exceptions thereto they are not presented by any of the facts in this case. Neither the insolvency of the corporation, nor the execution of an illegal trust-deed, nor the failure to collect in full all stock subscriptions, nor all together, gave to these simple contract creditors any lien upon the property of the corporation, nor charged any direct trust thereon.” Other cases are cited in' the opinion as holding the same doctrine. In Wabash &c. Railway Company v. Ham, 114 U. S. 587, 594, Mr. Justice Gray, in delivering the opinion of the court, said: “ The property of a corporation is doubtless a trust fund for the payment of its debts, in the sense that when 'the -corporation is lawfully dissolved and all its business wound up, or when it is insolvent, all its creditors are entitled in equity to have their debts paid out of the corporate property before any distribution thereof among the stockholders. It is also true, in the case of a corporation as in that of a natural person, that any conveyance of property of the debtor, without authority of law, and in fraud of existing creditors, is void as against them.” These cases, while not involving precisely the same question now before us," }, { "docid": "23045659", "title": "", "text": "road subject to the rights of the bondholders.” . We do not attach any weight to the objection that the transfer by the old company of its entire property to the new company was illegal and ultra vires, and, therefore, to be disregarded. However such a transfer might be considered in a suit- to set it aside, the objection does not lie in the mouth of the appellant, for he has proceeded against the new company ,and obtained, upon the assumed validity of such transfer, a-decree that it pay his judgment, which is founded upon a demand that company agreed to assume, as part of the consideration of the transfer. • There is no evidence in the record .before us that the parties who took the bonds issued by the St. Louis, Hannibal and Keokuk Railroad Company had any notice, actual or constructive of the demand of the complainant. But if they had, it \"would not have affected their rights. That demand was not then reduced to judgment, and created no lien upon the property of the company, nor any restriction upon the company’s right to use it for any lawful purpose. The bonds were given to ráise the necessary funds to complete the road of the company, and_ the mortgage was executed to secure their payment. They were negotiable instruments, and in the hands of the purchasers cannot' be impeached for any neglect of the company issuing-them to pay the demands of other creditors. Ve are ■ unable to perceive any ground upon which their priority over the claim of the appellant can be in any way impaired. _ We do not question the general doctrine invoked by the appellant, that the property of a railroad company is a trust fund for the payment of its debts, but do not perceive any place for its application here. That doctrine only means that the property must first be appropriated to the payment of the. debts of the company before any portion of it can be distributed to the stockholders; it does not meaii that the property is so affected by" }, { "docid": "23045660", "title": "", "text": "of the company, nor any restriction upon the company’s right to use it for any lawful purpose. The bonds were given to ráise the necessary funds to complete the road of the company, and_ the mortgage was executed to secure their payment. They were negotiable instruments, and in the hands of the purchasers cannot' be impeached for any neglect of the company issuing-them to pay the demands of other creditors. Ve are ■ unable to perceive any ground upon which their priority over the claim of the appellant can be in any way impaired. _ We do not question the general doctrine invoked by the appellant, that the property of a railroad company is a trust fund for the payment of its debts, but do not perceive any place for its application here. That doctrine only means that the property must first be appropriated to the payment of the. debts of the company before any portion of it can be distributed to the stockholders; it does not meaii that the property is so affected by the indebtedness of. the company' that it cannot' be sold, transferred, or mortgaged to bona fide purchasers for a ■valuable consideration, except subject to the liability of being. appropriated to pay that indebtedness. Such a doctrine has no existence. The cases of Curran v. State of Arkansas, 15 How. 304, 307, and Wood v. Dummer, 3 Mason, 308, give no countenance to anything of the kind. Judgment affirmed." }, { "docid": "15759120", "title": "", "text": "587, 594, 5 S.Ct. 1081, 1084, 29 L.Ed. 235 (1885), the Supreme Court stated: The property of a corporation is doubtless a trust fund for the payment of its debts, in the sense that when the corporation is lawfully dissolved and all its business wound up, or when it is insolvent, all its creditors are entitled in equity to have their debts paid out of the corporate property before any distribution thereof among the stockholders. It is also true, in the case of a corporation, as in that of a natural person, that any conveyance of property of the debtor, without authority of law, and in fraud of existing creditors, is void as against them. And 15 W. Fletcher, Cyclopedia of the Law of Private Corporations § 7125 (1973 Rev. Vol.), states: The rule that a corporation taking a transfer of the property and franchises of another corporation takes the same free from any liability for the general debts of the latter does not apply where the transfer constitutes, either in fact or as a matter of law, a fraud upon the creditors of the other corporation. * * * If the sale is not a bona fide one for a valuable consideration and in the usual course of business, the purchaser is liable for the debts of the seller. [Footnote omitted.] Hydrocraft’s Chicago inventory was substantially the only corporate asset which would have been available to satisfy Panther’s judgment. However, Beck converted that inventory to his own use by transferring it to Cleveland, first to Becks Spray Systems, Inc. and then to Universal where it was consumed in making SPRAYMATE B pumps. This was a fraudulent conveyance. In Landers Frary & Clark v. Vischer Products Co., 201 F.2d 319, 324 (7th Cir. 1953), this court stated: In Illinois, a corporation has no right to give away its property leaving its creditors unpaid. Consequently any transfer of its assets not made in the usual course of business and for an adequate consideration will be set aside and the lien of the creditors enforced in equity. Bouton v. Smith, 113 Ill." }, { "docid": "22409497", "title": "", "text": "two points. First. That the expiration of the charter had not released the indorser. Second. That a court of equity would lend its-aid to trustees for creditors' of the bank, to enforce - payment .of the notes. We do not think that the omission of the bank to appoint-a trustee,'would vary the substantial rights of creditors in a court of equity. - Whatever technical difficulties exist in maintaining an action at law by or against a.corporation after its charter has been re-' pealed, in the apprehension of a court of equity, there is no difficulty in a creditor following the property of the corporation into-the hands of any one not a bond fide creditor or purchaser, and asserting his lien thereon, and obtaining satisfaction' of his . just debt out of- that fund -specifically set apart for its payment when the debt was contrae ted and. charged with a trust for ail the creditors when in the hands of the corporation; which trust the ■ repeal of the charter does not. destroy. Chancellor Kent, in 2 Com. 307, n., says, “ The rute of the common law has in fact become obsolete... It has never been applied to insolvent or dissolved moneyed corporations in England. The sound doctrine now is, as shown by statutes and judicial decisions, that •the capital, and debts of banking and other moneyed corporations, constitute a trust fund and pledge for the payment of creditors and stockholdérs, and a court of equity wifi lay hold of the fund, and see that it be duly collected and applied. The cáse of Hightower v. Thornton, 8 Georgia R. 491, and other cases'before referred to in this-opinion, are in conformity with this, doctrine; and, in our judgment, a law distributing the property of an insolvent trading or banking corporation among its Stockholders, or giving it to strangers, or seizing it to the use of the State, would as clearly impair the obligation of its contracts as a law giving to the heirs the effects of a deceased natural person, to the exclusion of his creditors, would impair the obligation" }, { "docid": "22932379", "title": "", "text": "trust fund has no application to a case of this kind. When a corporation is solvent, the theory that its capital is a trust fund upon which there is any lien for the payment of its debts has in fact very little foundation. No general creditor has any lien upon the fund under such circumstances, and the right of the corporation to‘deal with its property is absolute so long as it does not violate its charter or the law applicable to such corporation. In Graham v. Railroad Company, 102 U. S. 148, 161, it' was said by Mr. Justice Bradley, in the course of his opinion, that “When a corporation becomes insolvent, it is so far civilly dead that its property may be administered as a trust fund for the benefit of its stockholders and creditors. And a court of equity, at the instance of the proper parties, will then make those funds trust funds, which, in other circumstances, are as much the absolute property of the corporation as any man’s property is his.” And in Hollins v. Brierfield Coal & Iron Company, 150 U. S. 371, 383, 385, it was stated, by Mr-. Justice Brewer, in delivering the opinion of the court, and speaking of the theory of. the capital of a corporation being a trust fund, as follows: “ In other words, and that is the idea which underlies all these expressions in reference to ‘trust’ in connection with the property of a corporation, the -corporation is an entity, distinct from its stockholders as from its creditors. Solvent, it holds its property as any individual holds his, free from the touch of a creditor who has acquired no' lien ; free also from the touch of a stockholder who, though equitably interested in, has no legal right to, the property. Becoming insolvent, the equitable interest of the stockholders in the property, together with their conditional liability to the creditors, places the property in a condition of trust, first, for the creditors, and then for the stockholders. Whatever of trust there is arises from the peculiar and diverse equitable" }, { "docid": "22553347", "title": "", "text": "Pacific Railway v. Ham, 114 U. S. 587, it appeared that four railway corporations, owing debts, were consolidated under- authority of law, and, by the terms of the consolidation-agreement, the n.ew corporation was to protect the debts of the old. Subsequently, the new corporation executed a mortgage on all its ’ property, and in a contest between the mortgagees and the unsecured creditors of one of the constituent companies, the court held that the lien of the mortgagees was prior. In ■respect to this, Mr. Justice Gray (p. 594) thus -stated the law: “It was'contended that the property of the Toledo and Wabash Railway Company was a trust fund for all its creditors, and that upon the consolidation the Toledo, Wabash and Western Railway Company took the property of the Toledo and Wabash Railway Company charged with the payment of all its debts. The property of a corporation is doubtless a trust fund for the payment of its debts, in the sense, that when the corporation is lawfully dissolved and all its business wound up, or when it is insolvent, all its creditors are entitled in equity to have their debts paid out of the corporate property before any distribution thereof among the stockholders. It is also true, in the case of a corporation, as in that of a natural person, that any conveyance of property of the debtor, without authority of law, and in fraud of existing creditors, is void as against them.” The case of Fogg v. Blair, 133 U. S. 534, 541, presented a .similar question, and this court, by Mr. Justice Field, observed: “We do not question the general doctrine invoked by the appellant, that the property of a railroad company is a trust fund for the payment of its debts, but do not pereeive any place for its application here. That doctrine only means that the property must first be appropriated to the payment of the debts'of the company, before any'portion of it can be distributed to the stockholders; it does not mean that the property is so affected by the indebtedness of the company" }, { "docid": "22405260", "title": "", "text": "reimburse the United States for moneys advanced to redeem the notes. The bank could have claimed their return at any time upon a surrender of the notes. The surplus constituted the assets of the bank, and part of the fund appropriated by the statute for its creditors. It w.as charged with this liability, and was held subject to it after the purposes of the original trust were accomplished, although remaining in the treasury. It was then subject to' á new trust. A trustee cannot set off against the funds held by him in that character his individual demand against,the grantor of the trust.' Courts of equity and courts of law will not allow such an application of the .funds so long as they are affected by any trust. It would open the door to all sorts of chicanery and fraud. The fund must be relieved from its trust character before it can be treated in a.ny other character, This doctrine is well illustrated .in the case of Sawyer v. Hoag, 17 Wall. 611, 622. There á stockholder indebted to an insolvent corporation for unpaid shares undertook to set off against the claim upon him a debt due to him by the corporation. But it was held that this could not be done. Said the corirt, speaking by Mr. Justice Miller: “ The debt which the, appellant owed for his stock was a trust fund devoted to the payment..of all the creditors of the company.. As soon as the company became insolvent, and this fact became known to the appellant, the right of set-off for an ordinary debt to its full amount ceased. It became a fund belonging equally in equity to all the creditors, and could not be appropriated by tbe debtor to the exclusive payment of his own claim.” Here the surplus, being a fund for all the creditors, was subject to be distributed to them immediately upon the reimbursement of the advances of the United States, and the right of the creditors to it was not affected by the fact that it was at the time in the" }, { "docid": "22172868", "title": "", "text": "stockholder from loss at the expense of the general creditor, it should be disregarded or annulled so far as it may inequitably affect him.” ■ In the cáse last cited the stockholder nominally paid the stock subscription, but the money was immediately taken back as a loan, and it was claimed by him as a valid payment. The transaction was characterized by the court as a “ fraud upon the public who were expected to deal with them.” In Graham v. Railroad Co., 102 U. S. 148, 161, this court said, Mr. ^Justice Bradley delivering the opinion: “ When a corporation becomes insolvent, it is so far civilly dead; that - its property may be administered as a trust-fund for- the benefit of its stockholders and creditors. A court of equity, at the instance of the proper parties, will then make those funds trust-funds, which, in other circumstances-, are as much the absolute property óf the corporation as any man’s property is his.” • ’ In the more recent case’ of Wabash, St. Louis & Pacific Railway Co. v. Ham, 114 U. S. 587, 594, it was said by this court, speaking through Mr. J ustice Gray : “ The pro'perty of a corporation is doubtless a trust fund for the payment of its debts,'in the sense that when the corporation is lawfully dissolved and all its business wound, up, or when it is insolvent, all its creditors are entitled In equity to have their debts paid out. of the corporate property before any distribution thereof among the stockholders. It is also true, in the case' of a corporation, as in that of a- natural person, that any conveyance of property of the debtor, without authority of law, and in fraud of existing creditors, is void as against them.” Can the transactions between Richardson and the insolvent corporation of which he was largely the owner and controller, especially with respect to the claim he is urging in this catee, stand the test of the fairness and good faith which, as a director and stockholder, he owed to the corporation, its" }, { "docid": "22932378", "title": "", "text": "Mr. Justice Peckham, after stating the facts, delivered the opinion of the court. It will be noticed that the first question is based upon the facts that the bank, at-the time the dividends were declared and paid, was solvent, and that the stockholders receiving the dividends acted in good faith and believed that the same were paid out of the profits made by the bank. The sections of the Revised Statutes which are applicable to the questions involved herein are set forth in the margin. The complainant bases his right to recover in this suit upon the theory that the capital of the corporation was a trust fund for the payment of creditors entitled to a portion thereof, and having been paid in the way of dividends to the shareholders that portion can be recovered back in an action of this kind for the purpose of paying the debts of the corporation. He also bases his right to recover upon the terms of section 5204 of the Revised Statutes. We think the theory of a trust fund has no application to a case of this kind. When a corporation is solvent, the theory that its capital is a trust fund upon which there is any lien for the payment of its debts has in fact very little foundation. No general creditor has any lien upon the fund under such circumstances, and the right of the corporation to‘deal with its property is absolute so long as it does not violate its charter or the law applicable to such corporation. In Graham v. Railroad Company, 102 U. S. 148, 161, it' was said by Mr. Justice Bradley, in the course of his opinion, that “When a corporation becomes insolvent, it is so far civilly dead that its property may be administered as a trust fund for the benefit of its stockholders and creditors. And a court of equity, at the instance of the proper parties, will then make those funds trust funds, which, in other circumstances, are as much the absolute property of the corporation as any man’s property is his.” And" }, { "docid": "16056981", "title": "", "text": "shares. The action was at law under a state statute, and we think has no relevancy to the ease in hand. It was contended by the government in oral argument that the so-called trust fund doctrine was applicable, and that under that doctrine the entire amount distributed by the corporation among its stockholders must still be considered such a trust fund, and the stockholders receiving the same liable to the full extent of all dividends. Without doubt some of the earlier federal decisions give an apparent scope and observance to the trust fund doctrine not recognized in later decisions. It has now become well settled that the creditors of a solvent corporation have no lien upon its property, and that no trust relation exists with respeet to the property of such corporation in any true sense. The discussion of the question in McDonald v. Williams, 174 U. S. 397, 19 S. Ct. 743, 43 L. Ed. 1022, enlightens the subject. It is there said: “The complainant bases his right to recover in this suit upon the theory that the capital of the corporation was a trust fund for the payment of creditors entitled to a portion thereof, and having been paid in the way of dividends to the shareholders' that portion can be recovered back in an action of this kind for the purpose of paying the debts of the corporation. He also bases his right to recover upon the terms of section 5204 of the Revised Statutes [12 USCA § 56]. “We think the theory of a trust fund has no application to a ease of this kind. When a corporation is solvent, -the theory that its capital is a trust fund upon whieh there is any lien for the payment of its debts has in fact very little foundation. No general creditor has any lien upon the fund under such circumstances, and the right of the corporation to deal with its property is absolute so * long as it does not violate its charter or the law applicable to such corporation. * * * “These cases, while not" }, { "docid": "9823881", "title": "", "text": "to a chose in action could not be passed by assignment; and still, according to the generally accepted doctrine, they are only assignable so far as to vest in the assignee an equitable Interest The doctrine of the above cases was fully recognized and enforced by the supreme court of Illinois in Railway Co. v. Nichols, 57 Ill. 464. 2. As it appears from the record that by the note to the bank for $10,000, of July 25, 1893, William S. Hook, who was president and director of the railway company, bound himself as surety for the payment of the note, the railway company, being in failing circumstances, and already, when the drafts were drawn, a party to proceedings which placed it in the hands of a receiver, could not give a preference to one who, as an officer and member of the corporation, stood in a relation of trust toward the general creditors. It is insisted that the property of an insolvent corporation is a trust fund in such a sense as to preclude the directors and officers of the corpora tion from dealing with it in such a manner as to secure preferences for themselves. And this is undoubtedly the general doctrine, and the doctrine in Illinois. See Beach v. Miller, 130 Ill. 162, 22 N. E. 464; Roseboom v. Whittaker, 132 Ill. 81, 23 N. E. 339; Cook, Corp. § 691. In a recent case decided by this court (Sutton Manuf’g Co. v. Hutchinson, 63 Fed. 496, opinion by Mr. Justice Harlan), the doctrine is thus summed up: “It is, we think, the result of the eases that when a private corporation is dissolved, or becomes insolvent and determines to discontinue the prosecution of business, its property is thereafter affected by an equitable lien or trust for the benefit of creditors. The duty in such cases of preserving it for creditors rests upon the directors or officers to whom has been committed the authority to control and manage its affairs. Although such directors and officers are not technical trustees, they hold, in respect of the property under" }, { "docid": "22932382", "title": "", "text": "all stock subscriptions, nor all together, gave to these simple contract creditors any lien upon the property of the corporation, nor charged any direct trust thereon.” Other cases are cited in' the opinion as holding the same doctrine. In Wabash &c. Railway Company v. Ham, 114 U. S. 587, 594, Mr. Justice Gray, in delivering the opinion of the court, said: “ The property of a corporation is doubtless a trust fund for the payment of its debts, in the sense that when 'the -corporation is lawfully dissolved and all its business wound up, or when it is insolvent, all its creditors are entitled in equity to have their debts paid out of the corporate property before any distribution thereof among the stockholders. It is also true, in the case of a corporation as in that of a natural person, that any conveyance of property of the debtor, without authority of law, and in fraud of existing creditors, is void as against them.” These cases, while not involving precisely the same question now before us, show there is no well-defined lien of creditors upon the capital of a corporation while the latter is a solvent and going concern, so as to permit creditors to question, at the time, the disposition of the property. The bank being solvent, although it paid its dividends out of capital, did not pay them out of a trust fund. Upon the subsequent insolvency of the bank and the appointment of a receiver, an action could not be brought by the latter to recover the dividends thus paid on the theory that they were paid from a trust fund, and therefore were liable to be recovered back. It is contended on the part of the complainant, however, that if the assets of the bank are'impressed with a trust in favor of its creditors when it is insolvent, they must be impressed with the same trust when it is solvent; that the mere fact that the value of the assets of the corporation has sunk below the amount of its debts, although as yet unknown to anybody," } ]

[ { "docid": "23310712", "title": "", "text": "Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957) and its two companion cases, General Electric Co. v. Local 205, United Electrical etc., Workers, 353 U.S. 547, 77 S.Ct. 921, 1 L.Ed.2d 1028 (1957) and Goodall-Sanford, Inc. v. United Textile Workers, 353 U.S. 550, 77 S.Ct. 920, 1 L.Ed.2d 1031 (1957); by the trilogy of United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960), United Steelworkers of America, A.F.L.-C.I.O. v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), and United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); by the later trilogy of Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962), Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962), and Drake Bakeries, Inc. v. Local 50, American Bakery etc. Workers, supra, 370 U.S. 254, 82 S. Ct. 1346, 8 L.Ed.2d 474 (1962); and by John Wiley & Sons v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). Our analysis of these opinions convinces us that the contractor’s motion to dismiss here should have been granted. Lincoln Mills and its companions clearly establish the principles, pp. 451 and 455-456 of 353 U.S., pp. 915, 917 of 77 S. Ct., 1 L.Ed.2d 972, that § 301 “authorizes federal courts to fashion a body of federal law for the enforcement of these collective bargaining agreements and includes within that federal law specific performance of promises to arbitrate grievances under collective bargaining agreements”; that the statute “expresses a federal policy that federal courts should enforce these agreements on behalf of or against labor organizations and that industrial peace can be best obtained only in that way”; and that “the substantive law to apply in suits under § 301(a) is federal law, which the courts must fashion from, the policy of our national labor laws”. In the Steelworkers trilogy we find renewed emphasis" } ]

[ { "docid": "6007536", "title": "", "text": "arbitrable and enjoining the Union from proceeding to arbitration. The Union appealed to this Court. Arbitration of labor disputes is a matter of contract, not a matter of right. United Steelworkers of America v. Warrior and Gulf Navigation Company, 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); Local Union No. 787, International Union of Electrical, Radio and Machine Workers, AFL-CIO v. Collins Radio Company, 317 F.2d 214 (5th Cir. 1963). Determination of the arbitrability of this dispute therefore depends upon whether the collective agreement between the Company and the Union requires arbitration. In deciding this question, the permissible scope of the judicial inquiry is narrowly circumscribed by the Steelworkers’ trilogy. United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers of America v. Warrior and Gulf Navigation Company, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960). See also Lodge No. 12, District No. 37, International Association of Machinists v. Cameron Iron Works, Inc., 292 F.2d 112 (5th Cir. 1961). We are precluded from “weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim,” United Steelworkers of America v. American Manufacturing Co., supra, 363 U.S. at 568, 80 S.Ct., at 1346, such questions being for the arbitrator alone to decide. Our examination is solely “confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract”, United Steelworkers of America v. American Manufacturing Co., supra, and whether the parties “did agree to arbitrate the grievance * * United Steelworkers of America v. Warrior and Gulf Navigation Company, supra, 363 U.S. at 582, 80 S.Ct., at 1353. Having made this ‘limited inquiry, we conclude that this is a contractual dispute which the parties agreed to submit to arbitration. Compulsory retirement of employees upon attainment of a certain" }, { "docid": "6007535", "title": "", "text": "of company management, followed by arbitration in certain specified cases when agreement is not reached. Contending that Article VII of the collective agreement specifically precluded use of the grievance-arbitration procedure in this dispute, the Company refused to meet on the grievance. The Union then filed a second grievance alleging that the Company’s refusal to meet on the first grievance violated the grievance provisions of the collective bargaining contract. This second grievance, after being processed through the grievance procedure without resolution, was submitted to an arbitrator who found that the Company’s refusal had violated the contract. Following this determination, Southwestern Bell met with the Union on the grievance, but no agreement was reached and the Union invoked arbitration again. The Company responded by instituting this suit to enjoin arbitration, in which it reasserted that the dispute was not arbitrable under the express provision of Article VII. The Union cross-claimed seeking to compel arbitration. The District Court denied the Union’s motion for summary judgment and granted, sua sponte, summary judgment for the Company declaring the dispute not arbitrable and enjoining the Union from proceeding to arbitration. The Union appealed to this Court. Arbitration of labor disputes is a matter of contract, not a matter of right. United Steelworkers of America v. Warrior and Gulf Navigation Company, 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); Local Union No. 787, International Union of Electrical, Radio and Machine Workers, AFL-CIO v. Collins Radio Company, 317 F.2d 214 (5th Cir. 1963). Determination of the arbitrability of this dispute therefore depends upon whether the collective agreement between the Company and the Union requires arbitration. In deciding this question, the permissible scope of the judicial inquiry is narrowly circumscribed by the Steelworkers’ trilogy. United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers of America v. Warrior and Gulf Navigation Company, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960). See also Lodge No." }, { "docid": "8535211", "title": "", "text": "contentions of the parties, we must first review the relevant case law in order to chart the bounds of the arbitrator’s authority and the scope of our review of his award. In the Steelworkers trilogy, United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S. Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S. Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior and Gulf Navigation Company, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), which established the primacy of arbitration in the resolution of labor disputes, the Supreme Court set forth the principal limitations on an arbitrator’s authority: [A]n arbitrator is confined to interpretation and application of the collective bargaining agreements; he does not dispense his own brand of industrial justice. . . . His award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse .enforcement of the award. Enterprise Wheel, supra at 597, of 363 U.S., at 1361 of 80 S.Ct. In following the Steelworkers trilogy, the Third Circuit added: [W]e hold that a labor arbitrator’s award does “draw its essence from the collective bargaining agreement” if the interpretation can in any rational way be derived from the agreement, viewed in the light of its language, its context, and any other indicia of the parties’ intention; only where there is a manifest disregard of the agreement, totally unsupported by principles of contract construction and the law of the shop, may a reviewing court disturb the award. Ludwig Honold Mfg. Co. v. Fletcher and United Auto Workers, Local 416, 405 F.2d 1123, 1128 (3d Cir. 1969) (footnote omitted). And, in Swift Industries, Inc. v. Botany Industries, Inc., 466 F.2d 1125 (3d Cir. 1972), the court defined still further some of the limits on an arbitrator’s authority: For, in holding that an arbitrator’s award does not draw its essence from the agreement if the arbitrator’s interpretation cannot" }, { "docid": "6842717", "title": "", "text": "Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, [1353] 4 L.Ed.2d 1409, 1417. The problem in those cases was whether an employer, concededly party to and bound by a contract which contained an arbitration provision, had agreed to arbitrate disputes of a particular kind. * * * * * jfc The duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty. Thus, just as an employer has no obligation to arbitrate issues which it has not agreed to arbitrate, so a fortiori, it cannot be compelled to arbitrate if an arbitration clause does not bind it at all. 376 U.S. at 546-547, 84 S.Ct. at 912, 11 L.Ed.2d at 902-903. The landmark case in this circuit is Local U. No. 787, Inter. U. of E., R. & M. Wkrs. v. Collins Radio Co., 317 F.2d 214 (5 Cir. 1963). In that case we held: These principles may be broadly stated. Arbitration is a contractual procedure. The right to demand, or the duty to utilize, arbitration depends on the contract. Therefore, as with a traditional dispute, whether the contract requires arbitration is a question for judicial determination. 317 F.2d at 216. Judge Griffin Bell in speaking for this court in Oil, Chemical and Atomic Workers International Union v. Southern Union Gas Co., 379 F.2d 774 (5 Cir. 1967), held: The proper approach for the courts in an arbitration matter such as this was delineated by the Supreme Court in the celebrated Steelworkers trilogy, United Steelworkers of America v. American Mfg. Co., 1960, 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403; United Steelworkers of America, AFL-CIO v. Warrior & Gulf Navigation Co., 1960, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409; United Steelworkers of America v. Enterprise Wheel and Car Corp., 1960, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424. The landmark case in this circuit, applying the same principles is Local Union No. 787, Int’l Union of Elec., Radio and Machine Workers v. Collins Radio Co., 5 Cir.," }, { "docid": "9872424", "title": "", "text": "GEE, Circuit Judge: This case concerns the arbitrability of a dispute arising under a collective bargaining agreement between a furniture manufacturing company and a carpenters’ union. The company discharged employee Cobb allegedly for failure and refusal to perform his duties and follow instructions. The union processed a grievance in accordance with the collective bargaining agreement, contending that Cobb was fired in violation of the management’s rights clause, which provided that employees may be fired “for just cause.” Failing to carry the grievance procedure, the union notified the company that it intended to take the matter to arbitration. The company, maintaining that the dispute was rot arbitrable, filed suit in federal district court seeking a declaratory judgment that Cobb’s discharge was not subject to arbitration and requesting an injunction prohibiting the union from proceeding to arbitration. The union counterclaimed for an injunction requiring the company to submit the Cobb discharge to arbitration. The district court held for the company, and the union appeals. In deciding questions of arbitrability, we are guided by the Supreme Court’s decisions in the Steelworkers trilogy addressing the role of arbitration in labor/management disputes. United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Co., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). In Warrior & Gulf, the Court articulated a national labor policy in favor of arbitration. While the Court recognized that arbitration is a matter of contract and that a party cannot be required to submit to arbitration any dispute that it did not agree to, the Court held that: An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage. 363 U.S. at 582-83, 80 S.Ct. at 1353. Bearing in mind this strong presumption" }, { "docid": "9849856", "title": "", "text": "The Arbitration Award In reviewing the merits of Garvey’s challenge to the arbitrator’s award, we start with the proposition that judicial review of an arbitrator’s decision in a labor dispute is extremely limited. Our deferential approach to judicial review found its first important expression in three 1960 Supreme Court cases that have come to be known as the “Steelworkers Trilogy.” See Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). In those eases, the Court explained that a collective bargaining agreement is “more than a contract; it is a generalized code to govern a myriad of cases which the draftsmen cannot wholly anticipate.” Warrior & Gulf Navigation Co., 363 U.S. at 578, 80 S.Ct. 1347. The Court went on to state that because the arbitrator is the .one chosen to implement the collective bargaining agreement’s system of self-government, “[i]t is the arbitrator’s construction [of the agreement] which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.” Enterprise Wheel & Car Corp., 363 U.S. at 599, 80 S.Ct. 1358. Accord Federated Dept. Stores v. United Food & Comm. Workers Union, Local 1442, 901 F.2d 1494, 1496 (9th Cir.1990). More recently, the Court has reiterated the deference due to an arbitrator’s award: “[A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.” United Paperworkers Intl. Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987). In Enterprise Wheel & Car Corp., the Supreme Court set forth one of the exceptions to the general rule of outright refusal to" }, { "docid": "7010203", "title": "", "text": "grow out of any labor dispute” for purpose of the Norris-LaGuardia Act. B. A few years after the adoption of the Norris-Laguardia Act Congress fostered collective bargaining by enacting the Wagner Act, the National Labor Relations Act of 1935. In 1947, it modified national labor policy by enacting the Taft-Hartley Act, the Labor Management Relations Act of 1947. National policy, embodied in the National Labor Relations Act, as thus amended June 23, 1947, 29 U.S.C. § 173(d), favors the orderly resolution of labor-management grievances through arbitration. United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). Moreover, the Labor Management Relations Act (LMRA) authorizes federal courts to entertain suits to enforce collective bargaining agreements. Section 301(a), 29 U.S.C. § 185(a). These provisions, in combination, created the basis for suits to enforce arbitration agreements by injunction. However, Congress did not repeal the Norris-LaGuardia Act ban on injunctions, considering and rejecting a proposal to do so. The anti-injunction policy of the Norris-LaGuardia Act is not an impediment to specific performance of the promise to arbitrate. The Supreme Court has, since Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), consistently upheld the validity of orders compelling the arbitration of a labor dispute. United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974); Nolde Brothers, Inc. v. Local No. 358, Bakery Workers Union, 430 U.S. 243, 97 S.Ct. 1067, 51 L.Ed.2d 300 (1977). However, these cases do not involve the power of a court to enjoin a strike pending the arbitration of the dispute. Moreover, because of the national labor policy in support of agreed upon dispute-settlement procedures, an injunction may issue to prevent the violation of an arbitration" }, { "docid": "22315440", "title": "", "text": "urged by Miss Austin would render the arbitration provision meaningless for all practical purposes. If the parties to such an agreement intended for arbitration to be permissive, there would be no reason to include Article 32, the arbitration provision in the contract, for the parties to an existing dispute could always voluntarily submit it to arbitration. Almost identical words (“either party may request arbitration”) in a fact situation indistinguishable from that at hand has received the same construction we place upon it by the Eighth Circuit in Bonnot v. Congress of Independent Unions, Local No. 14, 331 F.2d 355, 359 (8th Cir.1964), which followed Deaton Truck Line, Inc. v. Local Union 612, 314 F.2d 418, 422 (5th Cir.1962). See also American Italian Pasta Co. v. Austin Co., 914 F.2d 1103, 1104 (8th Cir.1990). Thus, we decide that the arbitration provisions in the collective bargaining agreement are obligatory and not permissive. III. A. In deciding whether to enforce the arbitration provision in this collective bargaining agreement, we start with and rely upon the “well-recognized policy of federal labor law favoring arbitration of labor disputes.” Adkins v. Times-World Corp., 771 F.2d 829, 831 (4th Cir.1985), cert. denied, 474 U.S. 1109, 106 S.Ct. 896, 88 L.Ed.2d 930 (1986). In the Steelworkers Trilogy, the Supreme Court established that arbitration is favored in labor disputes. See e.g., United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960). We need not rely on the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., in this case because, in this circuit, the FAA is not applicable to labor disputes arising from collective bargaining agreements. Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1067 (4th Cir.1993). B. The collective bargaining agreement specifically provides that claims of gender and disability discrimination are subject to the grievance" }, { "docid": "5800448", "title": "", "text": "all of the wages and other contractual benefits he was improperly deprived of through Management’s decision to sever his employment. In computing the amount due to him, the Company shall be entitled to deduct any wages or compensation Grievant received from alternate sources. He shall also be offered reinstatement to his former position. Kewanee then brought this action under § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, to have the arbitrator’s award vacated. The District Court granted Kewanee’s motion for summary judgment on the grounds that the arbitrator exceeded his authority by modifying and amending the agreement. The principal question before us is whether the arbitrator’s award drew its essence from the collective bargaining agreement. If it did, the District Court must be reversed. United Steelwkrs. of Am. v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); Western Iowa Pork Co. v. National Bro. Pack. & Dairy Wkrs., 366 F.2d 275 (8th Cir. 1966). To effectuate the strong federal policy favoring arbitration as a means of resolving labor disputes, our review of the arbitrator’s award is limited. United Steelwkrs. of Am. v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelwkrs. of Am. v. Warrior & Gulf N. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelwkrs. of Am. v. Enterprise Wheel & Car Corp., supra. See also Resilient Floor v. Welco Mfg. Co., Inc., 542 F.2d 1029 (8th Cir. 1976); General Drivers v. Sears, Roebuck & Co., 535 F.2d 1072 (8th Cir. 1976). It is not within the scope of our review to pass upon the merits of a grievance. See General Drivers & H. U., L. 554 v. Young & Hay Transp. Co., 522 F.2d 562 (8th Cir. 1975). The grant of power by the agreement must be broadly construed, with any doubt resolved in favor of the arbitrator’s authority. Resilient Floor Etc. v. Welco Mfg. Co. Inc., supra at 1032; Western Iowa Pork Co. v. National Bro. Pack. & Dairy Wkrs., supra at 277." }, { "docid": "5153489", "title": "", "text": "Amount of Wages Due. The Company has made a Motion for Summary Judgment in its favor, which will be denied, and a Motion for Attorney’s Fees and Costs. The Union’s Motion for Remand will be granted; all requests for attorney’s fees and costs will be denied. II. One of the central tenents of national labor law and policy is that private arbitration is the favored method of settling grievances between organized workers and their employers; a court cannot overrule the decision of an arbitrator simply because its interpretation of the collective bargaining agreement differs from his. United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Navigation, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); Gateway Coal Co. v. United Mineworkers of America, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974); Napa Pittsburgh, Inc. v. Automotive Chauffeurs, Local 926, 502 F.2d 321 (3rd Cir.) (en banc), cert. den. 419 U.S. 1049, 95 S.Ct. 625, 42 L.Ed.2d 644 (1974). Absent fraud, bias or misconduct, an arbitrator’s award that “draws its essence from the collective bargaining agreement” must be allowed to stand. Only when the award shows manifest disregard of the agreement, and is totally unsupported by principles of contract interpretation or the practices of the industry and the shop, can it be disturbed. United Steelworkers v. Warrior & Gulf Navigation, supra; Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123 (3rd Cir. 1969); Keystone P. Spec. Co., Inc. v. Scranton P. P. and A. U. No. 119, 386 F.Supp. 416 (M.D.Pa. 1974), aff’d, 3 Cir., 517 F.2d 1398 (1975). In the instant case, the Union moves the Court to enforce the Award by ordering the Company to pay the Grievants back wages. An action for the enforcement of an arbitration award is proper under Section 301 of the National Labor Relations Act (29 U.S.C. § 185) providing that the award is final and binding under" }, { "docid": "1695213", "title": "", "text": "point of departure for the court’s present inquiry is the so called Steelworkers Trilogy. United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of Ameri ca v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). The Trilogy establishes the following relevant propositions: (1) The function of the court is limited “to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract”, United Steelworkers of America v. American Mfg. Co., supra, 363 U.S. 568, 80 S.Ct. 1346; and (2) Doubts as to the coverage of the arbitration clause should be resolved in favor of arbitration. United Steelworkers of America v. Warrior & Gulf Navigation Co., supra. Under these cases and those which follow, arbitration is clearly regarded as an important and preferred method of resolving labor disputes, one to which the court must defer in most instances. The Trilogy and later cases have also made clear that questions of substantive arbitrability, such as that instantly before the court, are for the court, and not for the arbitrator to decide. In this regard, the court must determine both whether the parties have agreed to arbitrate and what issues are included in that arbitration agreement. Atkinson v. Sinclair Ref. Co., 370 U.S. 238, 241, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); United Steelworkers of America v. Warrior & Gulf Navigation Co., supra; Torrington Co. v. Metal Products Union, 347 F.2d 93 (2 Cir. 1965), cert. denied, 382 U.S. 940, 86 S.Ct. 394, 15 L.Ed.2d 351 (1965). It is settled that “arbitratign is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” United Steelworkers of America v. Warrior & Gulf Navigation Co., supra, 363 U.S." }, { "docid": "6218665", "title": "", "text": "and places still further limitations on the court’s discretion. The Norris-La Guardia Act, 29 U.S.C. § 104, largely removes the jurisdiction of federal courts to issue injunctions against labor stoppages, whereas section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), provides legal remedies to the parties for breach of collective bargaining agreements, including no-strike provisions. In Boys Markets, Inc. v. Retail Clerks Union Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), the Supreme Court accommodated these two statutory provisions in the light of the national policy favoring peaceful arbitration of labor disputes. See the Steelworkers Trilogy, United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); see also Gateway Coal v. United Mine Workers of America, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974). The Court held that federal courts may issue injunctions against labor stoppages in those instances in which the violation of the no-strike clause occurs over an issue that the parties have agreed to arbitrate. In Amstar Corp. v. Amalgamated Meat Cutters, 468 F.2d 1372 (5th Cir. 1972), cited with approval in Buffalo Forge Co. v. United Steelworkers of America, AFL-CIO, 428 U.S. 397, 96 S.Ct. 3141, 3145, 49 L.Ed.2d 1022 (1976), this court ruled that the Boys Markets case established three prerequisites for a federal district court’s jurisdiction to enjoin a strike: (1) the strike must be in breach of a no-strike obligation under an effective collective bargaining agreement; (2) the strike must be over an arbitrable grievance; and (3) both parties must be contractually bound to arbitrate the underlying grievance caused by the strike. Thus, before exercising its discretion to issue a preliminary injunction against a labor stoppage, the district court must first find that the movant’s case meets a total of seven criteria: four derived from the" }, { "docid": "22315441", "title": "", "text": "federal labor law favoring arbitration of labor disputes.” Adkins v. Times-World Corp., 771 F.2d 829, 831 (4th Cir.1985), cert. denied, 474 U.S. 1109, 106 S.Ct. 896, 88 L.Ed.2d 930 (1986). In the Steelworkers Trilogy, the Supreme Court established that arbitration is favored in labor disputes. See e.g., United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960). We need not rely on the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., in this case because, in this circuit, the FAA is not applicable to labor disputes arising from collective bargaining agreements. Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1067 (4th Cir.1993). B. The collective bargaining agreement specifically provides that claims of gender and disability discrimination are subject to the grievance procedure: ARTICLE 38 Fair Employment Practice and Equal Opportunities 1. The Company and the Union will comply with all laws preventing discrimination against any employee because of race, color, religion, sex, national origin, age, handicap, or veteran status. 2. This Contract shall be administered in accordance with the applicable provisions of the Americans with Disabilities Act. Before taking action relative to this Section, the Company will meet with the Local Union, and both parties will have sufficient opportunity to express their opinions regarding an anticipated action. 3. Any disputes under this Article as with all other Articles of this Contract shall be subject to the grievance procedure. Therefore, Miss Austin contractually agreed to submit her discrimination claims to the grievance procedure. The grievance procedure specifically provides for binding arbitration. ARTICLE 32 Arbitration 1. All disputes not settled pursuant to the procedure set forth in Article 31, Grievance Procedure, may be referred to arbitration by a notice given to the company or the union by the other within 10 days after the conclusion of Step 4" }, { "docid": "6351437", "title": "", "text": "recognized that “no single need is more insistent than that for the reform of the labor-management structure.” The method chosen for reform was to “bring postal labor relations within the same structure that exists for na tionwide enterprises in the private sector.” 2 U.S.Code Cong, and Admin. News 1970, pp. 3649, 3662. Pursuant to this goal, Congress enacted 39 U.S.C. § 1209(a), which provides: Employee-management relations shall, to the extent not inconsistent with provisions of this title, be subject to the provision of subchapter II of chapter 7 of title 29. [The National Labor Relations Act.] One of the reforms adopted in the Postal Reorganization Act was a provision permitting the adoption of grievance arbitration procedures. 39 U.S.C. § 1206(b) provides: (b) Collective-bargaining agreements between the Postal Service and bargaining representatives recognized under section 1203 may include any procedures for resolution by the parties of grievances and adverse actions arising under the agreement, including procedures culminating in binding third-party arbitration, or the parties may adopt any such procedures by mutual agreement in the event of a dispute. In the National Labor Relations Act, Congress explicitly recognized the strong federal policy favoring the settlement of labor-management disputes by grievance arbitration procedures adopted by the parties. Section 203(d) of the Act, 29 U.S.C. § 173(d) states: Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement. The Supreme Court has likewise recognized the central role of grievance and arbitration procedures in the private sector. E. g., United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). Moreover, there is also an opportunity under the Postal" }, { "docid": "1695212", "title": "", "text": "317, 320, n.2 (D.D.C.1973); Securities and Exchange Commission v. Crofter’s Inc., 351 F.Supp. 236, 264 (S.D.Ohio 1972); 9 J. Moore, Federal Practice ¶ 203.11 at 739; Cf., Fed. R.Civ.P. 62(e). Having concluded that the court is not divested of jurisdiction to entertain the instant application by virtue of plaintiffs’ filing of the notice of appeal, the court need only address itself to one further procedural-jurisdictional point; the authority of the court to grant the sought after relief. In that regard, the court indicates that it has jurisdiction under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, to consider the present application and to grant the requested stay. The Second Circuit’s decision in Black-Clawson, Inc. v. International Association of Machinists, 313 F.2d 179 (2 Cir. 1962), and the line of eases which has developed therefrom, clearly establish that the court has authority under Section 301 to issue an order preventing submission of an issue to arbitration. See also, Sperry Rand Corp. v. Engineers Union, 371 F.Supp. 198, 85 L.R.R.M. 2615 (S.D.N.Y.1974). The point of departure for the court’s present inquiry is the so called Steelworkers Trilogy. United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of Ameri ca v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). The Trilogy establishes the following relevant propositions: (1) The function of the court is limited “to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract”, United Steelworkers of America v. American Mfg. Co., supra, 363 U.S. 568, 80 S.Ct. 1346; and (2) Doubts as to the coverage of the arbitration clause should be resolved in favor of arbitration. United Steelworkers of America v. Warrior & Gulf Navigation Co., supra. Under these cases and those which follow, arbitration is clearly regarded as an important and preferred method of resolving labor disputes, one to" }, { "docid": "17480265", "title": "", "text": "favored national labor policy. See, e. g., Boys Markets, Inc. v. Retail Clerks Union, Local 770, 1970, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199; United Steelworkers of America v. American Manufacturing Co., 1960, 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403; United Steelworkers of America v. Enterprise Wheel & Car Corp., 1960, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424; United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409; Textile Workers Union of America v. Lincoln Mills of Alabama, 1957, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972. For this reason, in developing principles that will govern the availability of judicial relief under Title VII, we must carefully assess the impact of judicial action upon the favored arbitral remedy. The viability of arbitration depends on the willingness of courts to enforce the arbitrator’s award without reopening issues resolved by him. Thus, in such cases, courts customarily defer to the arbitrator’s determination. They restrict their inquiry to the single question whether, under the terms of the collective bargaining agreement, the arbitrator had power to decide the issues he decided. If he had such power, his decision is binding. See, e. g., United Steelworkers v. Enterprise Wheel & Car Corp., supra, 363 U.S. at 596, 80 S.Ct. 1358. The question here is whether a similar approach should be followed when, in the first instance, the issues decided by the arbitrator are cognizable in the federal court by virtue of Title VII, which manifests a strong national policy against discriminatory employment practices. We conclude that the traditional approach to the arbitration process is not warranted in this context. The remedy afforded by Title VII is supplemental. It exists apart from analogous remedies provided by contract or by federal or state law. Indeed, aggrieved employees may seek relief under Title VII without first invoking or exhausting available alternative legal or contractual remedies. See Caldwell v. National Brewing Company, 5 Cir., 1971, 443 F.2d 1044; King v. Georgia Power, 295 F.Supp. 943 (N.D. Ga. 1968). In addition, we have said" }, { "docid": "8663410", "title": "", "text": "seeking enforcement of the awards. The District Court’s judgment of enforcement was appealed to this Court. There is little dispute as to the applicable law. Both parties seem to agree that the courts do not have jurisdiction to review the merits of the underlying dispute. If the arbitrator has authority to act, his decision will not be questioned by the courts. United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960). The only point for us to decide is whether the arbitrator had authority to grant the awards in question. The authority of an arbitrator springs from the agreement between the parties, and it is upon the terms of this agreement that the award must be based. The arbitrator is not free to “dispense his own brand of industrial justice.” United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). However, in making the determination of whether an arbitrator has exceeded his authority the agreement must be broadly construed with all doubts being resolved in favor of his authority. Bonnot v. Congress of Independent Unions, Local #14, 331 F.2d 355 (8 Cir. 1964). As stated in United Steelworkers of America, etc. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583, 80 S.Ct. 1347, 1353, 4 L. Ed.2d 1409 (1960): “An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” Applying this philosophy to the facts of the case at hand we see that hours, wages, and overtime are dealt with in the collective bargaining agreement. The Agreement provides that “should any dispute arise concerning the interpretation or application of this Agreement * * * the dispute or grievance shall be submitted to arbitration.” Thus on the face of the Agreement, these grievances would seem to be a proper subject for arbitration under the doctrine enunciated in United" }, { "docid": "10319536", "title": "", "text": "issue an enforcement decree, all of which would take a considerable length of time. To require the plaintiff to now proceed with arbitration for the purpose of determining whether it has violated the collective bargaining agreement by refusing to discharge the replacement employees who had not become members of the union would, in the light of the four day hearing before the trial examiner and his decision, be an exercise in futility. The question to be resolved by arbitration having been fully tried and ■decided by the trial examiner it would be repetitious to arbitrate the very same issue. I am mindful of the principle enunciated in Textile Workers of America v. Lincoln Mills, of Ala., 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972, United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409, United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403, United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424, and the recent case of Packinghouse Workers v. Needham, decided by The United States Supreme Court on March 9, 1964, 84 S.Ct. 773, that Congressional policy favored the enforcement of agreements to arbitrate grievance disputes. In none of those cases, however, had there been a decision by a trial examiner of the Board which had passed upon the very question to be arbitrated. All of the above-cited .actions were commenced by the unions involved under Section 301(e) of the Labor Management Relations Act (Section 185(c) of Title 29 U.S.Code) to •compel arbitration or to enforce the decisions of arbitrators the Supreme Court in each instance holding that there was jurisdiction under that Section to grant the relief requested. Here, however, we have the converse situation, an action to stay arbitration pending the decision of the Board on a charge filed by the employer involving the very question to be arbitrated, and in which there has been a preliminary finding against the union by the Board’s examiner. The cases cited above," }, { "docid": "1028977", "title": "", "text": "the agreement. The Union, seeking to stay arbitration, contends that the arbitration clause is clearly and specifically limited in scope and should therefore not be extended by implication to cover the instant controversy. The Company contends that the federal labor policy favoring arbitration should govern and the dispute interpreted as falling within the purview of the arbitration clause, limited on its face though it may be. The Company focuses upon the broad no-strike, no-loekout clause of the agreement (Article XXIV) and contends that the arbitration clause must be mutually co-extensive therewith. There is great wisdom in the strong federal policy promoting industrial peace through collective bargaining agreements. A major tool in achieving this objective is the grievance machinery established by the parties to resolve disputes as an integral part of the collective bargaining process. See the “Steelworkers Trilogy”: United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960). However, this machinery and its applicability to disputes must rest upon the consent of the parties as expressed in, or implied from, their agreement; it is not imposed by law. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); Intn’l Union of Electrical Radio and Machine Workers v. Westinghouse Electric Corp., 218 F.Supp. 82 (S.D.N.Y.1963). In determining whether a grievance is arbitrable, the Court must not concern itself with the merits of the particular grievance. Where the relevant language of the agreement is unambigous and subject to only one interpretation the Court should not look to bargaining history as a source of contradictory evidence regarding the intent of the parties. United Steelworkers of America v. Warrior & Gulf Navigation Co., supra; Strauss v. Silvercup Bakeries, Inc., 353 F.2d 555 (2d Cir. 1965); United Mineworkers of America v. Bridgeport Gas Co., 328 F.2d 381. Our Judge Weinfeld put it" }, { "docid": "22875650", "title": "", "text": "primarily on the determination that Article 21(z) was not a part of the contract because, while the draft of the collective bargaining agreement was approved by the union’s membership, this article had never been submitted to the union and the union had not consented to it. The arbitration procedure set forth in the contract provides: The Arbitrator shall have no authority to change, amend, add to, subtract from, modify or amend any of the terms or provisions of this Agreement. Contending that the contract is clear, the employer asserts that the arbitrator exceeded his authority by modifying or rewriting it and seeks to have the award vacated. The essence of the award, the employer therefore contends, was not drawn from the collective bargaining agreement. Neither party contends that the collective bargaining agreement is invalid; the company’s position is that all of it is binding, the union’s is that the arbiter had authority to decide that Article 21(z) is simply not a part of the contract. II. National policy, embodied in the National Labor Relations Act, as amended June 23, 1947, 29 U.S.C. § 173(d) , favors the orderly resolution of labor-management grievances through arbitration. United Steelworkers v. American Manufacturing Co., 1960, 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403; United Steelworkers v. Warrior & Gulf Nav. Co., 1960, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409; United Steelworkers v. Enterprise Wheel and Car Corp., 1960, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424. An agreement between an employer and a union to arbitrate disputes that may arise between them in the future is valid and enforceable. Textile Workers Union v. Lincoln Mills, 1957, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972. Such an agreement is not self-executing. It is usually supplemented by provisions in the collective bargaining agreement specifying the preliminary action to be taken in an effort amicably to resolve the dispute and the method of invoking arbitration should conciliation fail. The procedure is usually set forth in a portion of the agree ment referred to as the grievance procedure. The contract between these parties" } ]

[ { "docid": "22614139", "title": "", "text": "contradictory instructions carries more weight than the other. Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict. Had the instruc tion “[a] person ... is presumed to intend the natural and probable consequences of his acts,” App. 8a-9a, been followed by the instruction “this means that a person will not be presumed to act with criminal intention but the jury may find criminal intention upon consideration of all circumstances connected with the act for which the accused is prosecuted,” a somewhat stronger argument might be made that a reasonable juror could not have understood the challenged language as shifting the burden of persuasion to the defendant. Cf. Sandstrom, 442 U. S., at 517 (“[GJiven the lack of qualifying instructions as to the legal effect of the presumption, we can not discount the possibility that the jury may have interpreted the instruction” in an unconstitutional manner). See also Corn v. Zant, 708 F. 2d 549, 559 (CA11 1983), cert. denied, 467 U. S. 1220 (1984). Whether or not such explanatory language might have been sufficient, however, no such language is present in this jury charge. If a juror thought the “criminal intention” instruction pertained to the element of intent, the juror was left in a quandary as to whether to follow that instruction or the immediately preceding one it contradicted. Because a reasonable juror could have understood the challenged portions of the jury instruction in this case as creating a mandatory presumption that shifted to the defendant the burden of persuasion on the crucial element of intent, and because the charge read as a whole does not explain or cure the error, we hold that the jury charge does not comport with the requirements of the Due Process Clause. I — I HH Petitioner argues that even if the jury charge fails under Sandstrom this Court should overturn the Court of Appeals because the constitutional infirmity in the charge was" } ]

[ { "docid": "3558448", "title": "", "text": "effect, it required the jury to reject the accidental discharge theory unless the defendant could point to evidence that established it. Here the predicate fact was that the defendant formed an intent to shoot a deadly weapon at vital organs of Brookens and Cutchall. The fact to be presumed was that the defendant formed and executed an intent to kill them. Because instances in which an individual forms an intention to use a deadly weapon against a vital body part of another without intending to kill that person are at best exceedingly rare in human experience, a presumption of this kind will rarely be of significant benefit to the State. As we will see hereafter, the presumption clearly was of no benefit to the State in the circumstances of this case. Nevertheless, this portion of the charge was constitutionally infirm because it instructed the jury to assume an element of the offenses charged if the jury found the predicate fact to exist and no other evidence contradicted the presumed element. B. Having determined that the challenged instructions isolated from their context were constitutionally infirm, we turn to examine the charge in its entirety. Francis, 471 U.S. at 322, 105 S.Ct. at 1975. The Commonwealth asserts that both the general instructions given to explain to the jury the concepts of presumption of innocence and reasonable doubt and the trial court’s specific instructions with respect to intent sufficiently explain the erroneous instructions in a manner consistent with the Constitution. We disagree. 1. Both the initial and supplemental charges contained general instructions relative to the State’s burden of proof and the defendant’s presumption of innocence. These instructions, however, “do not dissipate the error in the challenged portion of the instructions.” Francis, 471 U.S. at 320, 105 S.Ct. at 1974. The instructions fail to cure the constitutionally defective presumption for two reasons. First, as in Francis, these general instructions are not rhetorically inconsistent with the specific instructions on intent which create a burden-relieving presumption. Francis, 471 U.S. at 319, 105 S.Ct. at 1973; Sandstrom, 442 U.S. at 518-19 n. 7, 99 S.Ct. at 2456" }, { "docid": "3558451", "title": "", "text": "App. 31-32. We agree with the Commonwealth that the introductory language to this segment of the charge would indicate to the jury that it was about to hear an explanation of what had gone before. We also agree that this segment of the instructions suggested to the jury that it was not required to apply the presumption even if it found the predicate facts to exist beyond a reasonable doubt. This, however, does not solve the problem. While these phrases indicate that the presumption is not mandatory, they provide no criteria as to when the presumption should or should not be applied; consequently, it is impossible to determine whether the jury did or did not employ the presumption in deciding that the State had carried its burden of proof with respect to mens rea. Accordingly, we cannot say that the corrective language in the supplemental instructions cured the charge’s constitutional defects. Nor can we agree with the Commonwealth when it insists that the two charges, taken as a whole, simply instructed the jury that it could infer an intent to kill from all of the facts. In our view, neither the supplemental nor the initial instructions can fairly be read to communicate such a message. As for the supplemental instructions, they contain no explicit or implicit reference to inferring an intent to kill from the facts surrounding the shootings. It is true that the original instructions on intent to kill directed the jurors to consider “every inference” and informed them that “intention is to be gathered from all of the circumstances surrounding the act.” Nevertheless, the trial judge’s concluding remark on the subject made clear that the jurors had alternative means of satisfying the requirement that the Commonwealth prove beyond a reasonable doubt that Rock intended to kill Broo-kens and Cutchall. In the judge’s words, “a specific intent to take life [was] to be inferred from the facts, or rising [sic] out of the presumptions as we explained them to you.” App. 10 (emphasis added). Where the trial court offers the jury two approaches, one of which is unconstitutional, and" }, { "docid": "8796578", "title": "", "text": "the charge relied upon by the respondents are those portions referring to the state’s burden of proving each element of the crime charged beyond a reasonable doubt. It is true that these portions of the instructions when applied in the context of the evidence regarding mental disease or defect and intent directly contradict the court's instruction on the diminished capacity defense. A charge that contradicts a constitutionally impermissible instruction does not cure the problem, however, when there is a reasonable likelihood that a juror may have understood the charge as conveying an unconstitutional message. In Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), the Supreme Court reasoned, after finding an unconstitutional presumption in the trial court’s charge to the jury, that a presumption of innocence “boilerplate” instruction did not cure the due process violation: The Court today holds that contradictory instructions as to intent — one of which imparts to the jury an unconstitutional understanding of the allocation of burdens of persuasion — create a reasonable likelihood that a juror understood the instructions in an unconstitutional manner, unless other language in the charge explains the infirm language sufficiently to eliminate this possibility. If such a reasonable possibility of an unconstitutional understanding exists, we “have no way of knowing that [the defendant] was not convicted on the basis of the unconstitutional instruction.” Sandstrom, 442 U.S., at 526 [99 S.Ct., at 2460]. For this reason, it has been settled law since Stromberg v. California, 283 U.S. 359 [51 S.Ct. 532, 75 L.Ed. 1117] (1931), that when there exists a reasonable possibility that the jury relied on an unconstitutional understanding of the law in reaching a guilty verdict, that verdict must be set aside. Id. at 323 n. 7, 105 S.Ct. at 1976 n. 7. We conclude that there is more than a reasonable likelihood that the jurors in Hu-manik’s case received an unconstitutional understanding of their task. First, we believe it far more likely that the jurors when considering the evidence regarding mental disease or defect applied the instruction specifically directed to that subject matter rather than" }, { "docid": "16117498", "title": "", "text": "mental disease or defect that negated the intent to kill, burden of proof was imper-missibly shifted to defendant). The Commonwealth notes that the trial court gave the correct instruction for voluntary intoxication immediately before repeating the instruction in which it omitted “not.” It also argues the court instructed the jury that “[v]oluntary intoxication may reduce the crime of murder from first degree, to third degree,” immediately after the incorrect instruction. App. Appendix Vol. Ill, at 789. However, while a single defect does not necessarily make an instruction erroneous, see Henderson, a defect in a charge may result in legal error if the rest of the instruction contains language that merely contradicts and does not explain the defective language in the instruction. See Francis, 471 U.S. at 322, 105 S.Ct. 1965; see also United States v. Hernandez, 176 F.3d 719, 733 (finding an instruction on reasonable doubt to be unconstitutional, where a later clarification of the term did not serve to “unring the bell”). As the Supreme Court explained in Francis, 471 U.S. at 322, 105 S.Ct. 1965, other language in the instruction does not always serve to cure the error. This is so even when other language correctly explains the law. In Francis, the Court found that an erroneous jury instruction on intent created a mandatory presumption that the jury must infer a presumed fact if the state proved predicate facts. The Court concluded that this constitutional flaw had not been cured by subsequent language correctly explaining the operation of presumptions that immediately followed the challenged portion of the instruction, id. at 319-20, 105 S.Ct. 1965. The Court reasoned that the additional language would not have clarified the issue, and may have permitted another, impermissible interpretation by a reasonable juror. Id. at 325, 105 S.Ct. 1965. Here, the location of the error in context with the rest of the charge, considered along with the correct, but confusing language in the instruction, causes us to view this “single deficiency” as quite problematic. Neither the correct statements of law within the instruction, nor the statement immediately after the instruction, completely negated or" }, { "docid": "16117501", "title": "", "text": "the judge correctly stated that the Commonwealth had the burden of disproving the defense, but then misstated the law. Thus, it is reasonably likely, when considered in the context of the instructions on voluntary intoxication, that a juror believed that the defendant had to prove intoxication beyond a reasonable doubt and that the Commonwealth had the burden of disproving the defense by a lesser standard, Compare Humanik, 871 F.2d at 442-43 (instructions unconstitutionally placed the burden of proof on the defendant), and Johnson v. Rosemeyer, 117 F.3d 104, 111 (3d Cir.1997) (no due process problem where defendant not entitled under federal law to have instruction contain certain elements of justification defense, contrasting cases where instruction unconstitutionally shifts burden of proof of an element onto defendant, in violation of due process). Because it is reasonably likely that a juror interpreted the instruction as allow ing a finding of specific intent to kill based on something less than proof beyond a reasonable doubt, the instruction arguably denied Whitney the due process of law. See Francis, 471 U.S. at 321 n. 7, 105 S.Ct. 1965. The sentence immediately subsequent to the disputed phrase, stating that voluntary intoxication may reduce a murder from first degree to third degree, conceivably cured part of the problem. However, that explanation said nothing about the standard of proof required for intoxication. It did not explain that the Commonwealth was required to disprove intoxication beyond a reasonable doubt, or that Whitney did not have to prove intoxication beyond a reasonable doubt. See Humanik, 871 F.2d at 442-43. Thus, the Commonwealth’s claim that “given the court’s charge as a whole, no reasonable juror could possibly have concluded that Whitney could be found guilty of first degree murder only if he was intoxicated,” Appellants Br. at 69, misses the point. The problem is not only that a reasonable juror might have actually believed that to be the case. The greater problem is that it was reasonably likely that a juror believed that intoxication had to be established beyond a reasonable doubt and/or that the prosecution then had to disprove the defense" }, { "docid": "17098021", "title": "", "text": "mandatory presumption of this nature is contrary to Sandstrom and therefore violates Owens’s constitutional rights. There is additional support for this determination in the Georgia Supreme Court’s numerous attempts to cure the defective language. For example, in Napier, the court advised future trial courts to refrain from quoting the instructions on venue — Georgia Code section 17-2-2(c)— verbatim. 583 S.E.2d at 829. The court suggested that to avoid confusion, courts should use “may consider” rather than the statutory language “shall consider.” Id. at 829-30. Likewise in Edmond, the Georgia Supreme Court once again noted the problem with the language in Georgia Code section 17-2-2(c) and reiterated the fact that it had “previously set forth the better practice of charging the jury that it ‘may consider’ whether the crime was committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed.” 661 S.E.2d at 523. Even in Owens’s Georgia Supreme Court case, the same was true. Citing to Napier, the court stated that “[subsequent to [Owens’s] trial, we instructed trial courts to refrain from quoting this statutory language verbatim to avoid the potential for juries to construe the charge as shifting the burden of persuasion to the defendant on the issue of venue.” Owens, 693 S.E.2d at 495. The fact that the Georgia Supreme Court recognized that the instruction at issue had the “potential” to confuse juries on who had the burden of proof as to venue is problematic. See Sandstrom, 442 U.S. at 519, 99 S.Ct. at 2456-57 (holding unconstitutional jury instructions that might reasonably have been understood as creating a conclusive presumption). The state’s contention that the jury instructions as a whole cured the Sandstrom error is not persuasive either. The state claims that instructions to the jury about the presumption of innocence and that the state was required to prove every element of the offense — venue included — beyond a reasonable doubt amounts to sufficient clarification for the jury. But instructions like these are ex actly the type of general instructions Francis found inadequate: “Language that merely contradicts and" }, { "docid": "3558449", "title": "", "text": "challenged instructions isolated from their context were constitutionally infirm, we turn to examine the charge in its entirety. Francis, 471 U.S. at 322, 105 S.Ct. at 1975. The Commonwealth asserts that both the general instructions given to explain to the jury the concepts of presumption of innocence and reasonable doubt and the trial court’s specific instructions with respect to intent sufficiently explain the erroneous instructions in a manner consistent with the Constitution. We disagree. 1. Both the initial and supplemental charges contained general instructions relative to the State’s burden of proof and the defendant’s presumption of innocence. These instructions, however, “do not dissipate the error in the challenged portion of the instructions.” Francis, 471 U.S. at 320, 105 S.Ct. at 1974. The instructions fail to cure the constitutionally defective presumption for two reasons. First, as in Francis, these general instructions are not rhetorically inconsistent with the specific instructions on intent which create a burden-relieving presumption. Francis, 471 U.S. at 319, 105 S.Ct. at 1973; Sandstrom, 442 U.S. at 518-19 n. 7, 99 S.Ct. at 2456 n. 7. As the Court explained in Sandstrom, “[t]he jury could have interpreted the two sets of instructions as indicating that the presumption was a means by which proof beyond a reasonable doubt as to intent could be satisfied.” 442 U.S. at 518-19 n. 7, 99 S.Ct. at 2456 n. 7. Second, we believe it far more likely that when considering the evidence regarding Rock’s intent the jury applied the instructions specifically directed to that subject matter rather than the more general instructions. See Humanik, 871 F.2d at 442 (“we believe it far more likely that the jurors when considering the evidence regarding mental disease or defect applied the instruction specifically directed to that subject matter than the more general charge.”). 2. As we have noted, the court in its supplemental charge attempted to restate the challenged presumption in a portion of the charge which commences with the clause “so what the law is on the subject” and which characterizes the presumption as something for the jurors “to consider” and apply if they “see fit.”" }, { "docid": "16117500", "title": "", "text": "explained the absolutely incorrect statement of law in the context of the rest of the instructions. Moreover, the first correct statement of the law is itself somewhat confusing, because of the use of double negatives: “you cannot find the defendant guilty of first degree murder unless you are satisfied beyond a reasonable doubt that the defendant was not so intoxicated at the time that he was incapable of judging his acts and consequences ...” Appellants App. at 788-89 (emphasis added). The trial judge stated that he would repeat the instruction. However, it is likely that, upon hearing that, any juror who was even slightly confused by the previous instruction would have paid particular attention to the reiteration. That reiteration was, of course, incorrect. See Francis, 471 U.S. at 321 n. 7, 105 S.Ct. 1965 (noting that, after hearing conflicting intent instructions, it is reasonable to expect a juror “to attempt to make sense of a confusing earlier portion of the instruction by reference to a later portion of the instruction”). Immediately before repeating the instruction, the judge correctly stated that the Commonwealth had the burden of disproving the defense, but then misstated the law. Thus, it is reasonably likely, when considered in the context of the instructions on voluntary intoxication, that a juror believed that the defendant had to prove intoxication beyond a reasonable doubt and that the Commonwealth had the burden of disproving the defense by a lesser standard, Compare Humanik, 871 F.2d at 442-43 (instructions unconstitutionally placed the burden of proof on the defendant), and Johnson v. Rosemeyer, 117 F.3d 104, 111 (3d Cir.1997) (no due process problem where defendant not entitled under federal law to have instruction contain certain elements of justification defense, contrasting cases where instruction unconstitutionally shifts burden of proof of an element onto defendant, in violation of due process). Because it is reasonably likely that a juror interpreted the instruction as allow ing a finding of specific intent to kill based on something less than proof beyond a reasonable doubt, the instruction arguably denied Whitney the due process of law. See Francis, 471 U.S." }, { "docid": "9435986", "title": "", "text": "442 U.S. at 515, 99 S.Ct. at 2454. Thus, the jury charge directed the jury to presume the element, intent to kill, upon proof of other elements of the crime, the act of slaying another. This the Court found to be unconstitutional in that it “undermined the factfinder’s responsibility at trial, based on the evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.” 105 S.Ct. at 1972 citing County Court of Ulster County v. Allen, 442 U.S. at 156, 99 S.Ct. at 2224. In Franklin, the State argued that the language of the instruction allowing the presumption “may be rebutted” differentiated Franklin from Sandstrom, but the Court disagreed. The Court held that mandatory rebuttable presumptions are no less unconstitutional than mandatory conclusive .presumptions, even if slightly less onerous. 105 S.Ct. at 1973. See also Mullaney v. Wilbur, 421 U.S. at 698-70, 95 S.Ct. at 1889-1890 (holding unconstitutional a mandatory rebuttable presumption that shifted to the defendant a burden of persuasion on the issue of intent). “When combined with the immediately preceding mandatory language, the instruction that the presumptions ‘may be rebutted’ could reasonably be read as telling the jury that it was required to infer intent to kill as the natural and probable consequence of the act of firing the gun unless the defendant persuaded the jury that such an inference was unwarranted — [i.e.,] that the defendant bore an affirmative burden of persuasion once the State proved the underlying act giving rise to the presumption.” 105 S.Ct. at 1973. Furthermore, the Court found that language in the overall instruction to the effect that the defendant was presumed innocent, the State was required to prove every element of the crime beyond a reasonable doubt, and a general instruction on “criminal intention” did not dissipate the error in the challenged portion of the instruction. “Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity.” Id. at 1974-75. Finally, the Court held that the constitutionally erroneous jury instructions were not rendered harmless by the facts of the case." }, { "docid": "22970482", "title": "", "text": "of aiding and abetting. However the instructions state that the jury would need to answer in the negative to all three questions to find Gordon not guilty, implying that if the jury answered yes to just one or two of the three questions, Gordon could be found guilty. Therefore, Gordon argues he could have been convicted even if the government had not proven every element of the crime. The government responds that there was no error because the misstatement did not detract from the District Court’s clear and correct explanation right before the misstatement. However, “while a single defect does not necessarily make an instruction erroneous, a defect in a charge may result in legal error if the rest of the instruction contains language that merely contradicts and does not explain the defective language in the instruction.” Whitney v. Horn, 280 F.3d 240, 256 (3d Cir.2002) (citation omitted). In Whitney, we found a jury charge erroneous where it misstated the law despite having stated the law correctly just before the misstatement. Id. “[OJther language in the instruction does not always serve to cure the error. This is so even when other language correctly explains the law.” Id. (citing Francis, 471 U.S. at 322, 105 S.Ct. 1965). Although the final statement of the instruction was incomplete and therefore incorrect, we still need to determine if the error affected the defendant’s substantial rights in order to conclude that it was “plain error.” The government argues that, assuming arguendo there was error, the instruction was irrelevant to the dis-positive issue before the jury because at trial the defense only claimed that Gordon was not involved in the bank robberies, not that “whoever took the steps alleged to have been taken during the robberies by Gordon ... had not aided and abetted the offenses within the meaning of that term. The only question was whether Gordon was the person.” Government’s Br. at 38-39. For this reason, the government argues that the lack of specificity in the instruction had no impact on the verdict. We agree. Gordon does not challenge this interpretation of his defense" }, { "docid": "16117499", "title": "", "text": "S.Ct. 1965, other language in the instruction does not always serve to cure the error. This is so even when other language correctly explains the law. In Francis, the Court found that an erroneous jury instruction on intent created a mandatory presumption that the jury must infer a presumed fact if the state proved predicate facts. The Court concluded that this constitutional flaw had not been cured by subsequent language correctly explaining the operation of presumptions that immediately followed the challenged portion of the instruction, id. at 319-20, 105 S.Ct. 1965. The Court reasoned that the additional language would not have clarified the issue, and may have permitted another, impermissible interpretation by a reasonable juror. Id. at 325, 105 S.Ct. 1965. Here, the location of the error in context with the rest of the charge, considered along with the correct, but confusing language in the instruction, causes us to view this “single deficiency” as quite problematic. Neither the correct statements of law within the instruction, nor the statement immediately after the instruction, completely negated or explained the absolutely incorrect statement of law in the context of the rest of the instructions. Moreover, the first correct statement of the law is itself somewhat confusing, because of the use of double negatives: “you cannot find the defendant guilty of first degree murder unless you are satisfied beyond a reasonable doubt that the defendant was not so intoxicated at the time that he was incapable of judging his acts and consequences ...” Appellants App. at 788-89 (emphasis added). The trial judge stated that he would repeat the instruction. However, it is likely that, upon hearing that, any juror who was even slightly confused by the previous instruction would have paid particular attention to the reiteration. That reiteration was, of course, incorrect. See Francis, 471 U.S. at 321 n. 7, 105 S.Ct. 1965 (noting that, after hearing conflicting intent instructions, it is reasonable to expect a juror “to attempt to make sense of a confusing earlier portion of the instruction by reference to a later portion of the instruction”). Immediately before repeating the instruction," }, { "docid": "17098022", "title": "", "text": "instructed trial courts to refrain from quoting this statutory language verbatim to avoid the potential for juries to construe the charge as shifting the burden of persuasion to the defendant on the issue of venue.” Owens, 693 S.E.2d at 495. The fact that the Georgia Supreme Court recognized that the instruction at issue had the “potential” to confuse juries on who had the burden of proof as to venue is problematic. See Sandstrom, 442 U.S. at 519, 99 S.Ct. at 2456-57 (holding unconstitutional jury instructions that might reasonably have been understood as creating a conclusive presumption). The state’s contention that the jury instructions as a whole cured the Sandstrom error is not persuasive either. The state claims that instructions to the jury about the presumption of innocence and that the state was required to prove every element of the offense — venue included — beyond a reasonable doubt amounts to sufficient clarification for the jury. But instructions like these are ex actly the type of general instructions Francis found inadequate: “Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity.” 471 U.S. at 322, 105 S.Ct. at 1975. A reasonable juror could have incorrectly thought that although the state had the burden of proving venue beyond a reasonable doubt, the fact that the body was found in Troup County was enough to meet that burden. See id.; Sandstrom, 442 U.S. at 518 n. 7, 99 S.Ct. at 2456 n. 7. The last step in our analysis requires us to determine whether the Sandstrom error was harmless. See Rose v. Clark, 478 U.S. 570, 580-82, 106 S.Ct. 3101, 3107-08, 92 L.Ed.2d 460 (1986). On collateral review, we apply the harmless-error standard as articulated in Brecht v. Abrahamson, which dictates that a federal court may grant habeas relief on account of a constitutional error only if it determines that the constitutional error had a “substantial and injurious effect or influence in determining the jury’s verdict.” 507 U.S. 619, 623, 113 S.Ct. 1710, 1714,123 L.Ed.2d 353 (1993) (internal quotation marks omitted); see Trepal v." }, { "docid": "8796577", "title": "", "text": "expressly told the jury that Humanik had the burden of proving by a preponderance of the evidence that he “had a mental disease or defect at that time [i.e., the time of the alleged crime] which prevented him from having the state of mind the law says he would have to have, that is, a knowing or purposeful mental state in connection with the killing.” App. at 210. We agree with the respondent that a single portion of a charge must not be evaluated in artificial isolation, but rather that the instructions must be viewed in the context of the overall message conveyed to the jury. See, e.g., Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 896, 400, 38 L.Ed.2d 368 (1973). Nevertheless, there is nothing else in the charge that in any way dilutes this express instruction that Humanik had the burden of proving by a preponderance of the evidence that he had a mental disease or defect that negated the existence of an intent to kill Ms. Guzzo. The only portions of the charge relied upon by the respondents are those portions referring to the state’s burden of proving each element of the crime charged beyond a reasonable doubt. It is true that these portions of the instructions when applied in the context of the evidence regarding mental disease or defect and intent directly contradict the court's instruction on the diminished capacity defense. A charge that contradicts a constitutionally impermissible instruction does not cure the problem, however, when there is a reasonable likelihood that a juror may have understood the charge as conveying an unconstitutional message. In Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), the Supreme Court reasoned, after finding an unconstitutional presumption in the trial court’s charge to the jury, that a presumption of innocence “boilerplate” instruction did not cure the due process violation: The Court today holds that contradictory instructions as to intent — one of which imparts to the jury an unconstitutional understanding of the allocation of burdens of persuasion — create a reasonable likelihood that a juror" }, { "docid": "10059217", "title": "", "text": "the Commonwealth, unlike Smith, Laird and Chester did not also agree to commit a crime such as theft or robbery. However, that position ignores the record. Chester and Laird were also convicted of kidnaping, aggravated assault, false imprisonment, and unlawful restraint. Given the court’s instruction on accomplice liability, the jury could easily have convicted Laird of first-degree murder based on his conspiring with Chester to kidnap or assault Milano even if jurors were not convinced beyond a reasonable doubt that Laird intended to kill him. The Commonwealth also points out that the trial court instructed the jury that a defendant could not be found guilty of first-degree murder unless the defendant was “at that time, capable of forming a specific intent to kill....” -App. at 261. However, that instruction was given in the context of a charge on the diminished capacity defense to first-degree murder. When that defense is implicated, voluntary intoxication can reduce first-degree murder to third-degree murder by raising a reasonable doubt about the perpetrator’s ability to form the specific intent to kill. See Whitney v. Horn, 280 F.3d 240, 254 (3d Cir.2002) (citing Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975)). Given that context, we can not conclude that such a brief reference to the required mens rea for first-degree murder remedies the incorrect and misleading portion of the instruction. “Language-that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. [We have] no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict.” Francis v. Franklin, 471 U.S. 307, 322, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). Moreover, the problem here is exacerbated because; as noted above, the Penn-, sylvania Supreme Court, while recognizing the problem with the- instruction, did not attempt to- resolve it. Thus, inasmuch as Laird’s claim was not adjudicated on the merits by the 'state court, the district court correctly concluded that AEDPA’s deferential standard of review does not apply and that the instruction was erroneous.' This does hot, however, end our inquiry. We must still determine" }, { "docid": "16117495", "title": "", "text": "the defendant was so intoxicated at the time that he was incapable of judging his acts and their consequences or incapable of forming a willful, deliberate and premeditated design to kill. Voluntary intoxication may reduce a crime of murder from first degree, to third degree. Voluntary intoxication, however, is no defense to a charge of second or third degree murder or of voluntary manslaughter, nor, as I indicated earlier, is it a defense to any of the other crimes with which this defendant is charged.... Appellants App. at pp. 786-89 (emphasis added). All agree that the italicized portion of the charge is incorrect and that “was” and “so” should have been separated by “not.” The Commonwealth has argued at several points during the proceedings that the error is probably only one of transcription. However, there is nothing in the record to support such a blase assertion, and we obviously can not decide this case on the basis of that unsupported argument. Because the misstatement of law concerns the very defense which may negate the specific intent required for murder in the first degree, it is potentially a substantial error. The Commonwealth cites to Henderson v. Kibbe, 431 U.S. 145, 153, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977), in arguing that this single defect did not rise to the level of constitutional error when considered in context with the charge as a whole. Despite the “slip of the tongue,” argues the Commonwealth, the trial court properly instructed that voluntary intoxication can negate the necessary specific intent and reduce a homicide to third degree murder. The Commonwealth reminds us that the trial court twice instructed the jury that the prosecution shouldered the burden of disproving voluntary intoxication. In Henderson, supra, the Court found that the state court’s omission of an instruction regarding causation in a murder instruction was not a constitutional error requiring habeas relief because, taken as a whole, the challenged instruction sufficiently informed the jury about the element of causation. Id. However, that is quite different from what occurred in Whitney’s case. Here, the law regarding specific intent was explained" }, { "docid": "22436713", "title": "", "text": "abuse and domestic violence, which required only proof by a preponderance of the evidence. The explicit language of CALJIC No. 2.50.1 carves out of the general reasonable doubt standard a specific exception for pri- or evidence of sexual abuse and domestic violence, which carries only a preponderance burden. We find no reason to deviate from our well-settled rule of construction that the specific controls the general. See Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1158 (9th Cir.2004). Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), supports application of this principle to jury instructions. There, the Supreme Court held that the use of a contrary general instruction does not automatically cure a deficient specific instruction. Id. at 320, 105 S.Ct. 1965. Francis involved conflicting instructions to a jury in a murder trial, which informed the jury both that once the state had proven the predicate facts that it had created a presumption of intent and that the presumption “may be rebutted.” Id. at 309, 105 S.Ct. 1965. In holding that the general instructions regarding the government’s burden of proof did not cure the specific defects in the language that allowed the government to impermissibly shift the burden of proof to the defendant, the Court stated: Nothing in these specific sentences or in the charge as a whole makes clear to the jury that one of these contradictory instructions carries more weight than the other. Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict. Id. at 322, 105 S.Ct. 1965 (emphasis added). Because the trial court offered no explanation harmonizing the two burdens of proof discussed in the jury instructions, Gibson’s jury was presented with two routes of conviction, one by a constitutionally sufficient standard and one by a constitutionally deficient one. As Francis makes clear, that the trial court instructed the jury generally with the correct standard does not mean that due process was not violated" }, { "docid": "16117502", "title": "", "text": "at 321 n. 7, 105 S.Ct. 1965. The sentence immediately subsequent to the disputed phrase, stating that voluntary intoxication may reduce a murder from first degree to third degree, conceivably cured part of the problem. However, that explanation said nothing about the standard of proof required for intoxication. It did not explain that the Commonwealth was required to disprove intoxication beyond a reasonable doubt, or that Whitney did not have to prove intoxication beyond a reasonable doubt. See Humanik, 871 F.2d at 442-43. Thus, the Commonwealth’s claim that “given the court’s charge as a whole, no reasonable juror could possibly have concluded that Whitney could be found guilty of first degree murder only if he was intoxicated,” Appellants Br. at 69, misses the point. The problem is not only that a reasonable juror might have actually believed that to be the case. The greater problem is that it was reasonably likely that a juror believed that intoxication had to be established beyond a reasonable doubt and/or that the prosecution then had to disprove the defense by a lower standard of proof. It is unreasonable and improper to assume that lay persons can recognize that an incorrect standard of proof has been described in a jury instruction. “Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.” Boyde v. California, 494 U.S. 370, 380-81, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). However, expecting jurors’ “common sense” judgment to prevail over the court’s instructions would conflict with the presumption that juries follow their instructions. See Zafiro v. United States, 506 U.S. 534, 541, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). We presume “that jurors, conscious of the gravity of their task, attend closely the particular language of the trial court’s instruction in a criminal case and strive to understand, make sense" }, { "docid": "16117496", "title": "", "text": "intent required for murder in the first degree, it is potentially a substantial error. The Commonwealth cites to Henderson v. Kibbe, 431 U.S. 145, 153, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977), in arguing that this single defect did not rise to the level of constitutional error when considered in context with the charge as a whole. Despite the “slip of the tongue,” argues the Commonwealth, the trial court properly instructed that voluntary intoxication can negate the necessary specific intent and reduce a homicide to third degree murder. The Commonwealth reminds us that the trial court twice instructed the jury that the prosecution shouldered the burden of disproving voluntary intoxication. In Henderson, supra, the Court found that the state court’s omission of an instruction regarding causation in a murder instruction was not a constitutional error requiring habeas relief because, taken as a whole, the challenged instruction sufficiently informed the jury about the element of causation. Id. However, that is quite different from what occurred in Whitney’s case. Here, the law regarding specific intent was explained elsewhere in the jury instruction— in the description of different degrees of murder given approximately thirty pages before the voluntary intoxication instruction (Appellants App. at p. 747-51). That law was also correctly explained after the faulty instruction when the court answered a specific jury question about the degrees of murder, and the elements of burglary, and robbery. 808-21. , However, the law on voluntary intoxication insofar as it applies to the charge of first degree murder was explained only at the single instance quoted above. That instruction concluded with a misstatement of the law. There is no question that this instruction would have been critical to a juror’s understanding of the law of voluntary intoxication. It was the only time that the legal consequences of intoxication with respect to specific intent to kill were explained. Cf. Humanik v. Beyer, 871 F.2d 432, 441 (3d Cir.1989) (finding that, where there was no other language in instruction to dilute express instruction that defendant had the burden of proving by a preponderance of the evidence that he had" }, { "docid": "21723937", "title": "", "text": "say that if the jury found that the four elements set out above were established, Bronshtein was “guilty of anything that John Doe or Mr. X did in furtherance of [the conspiracy].” While the instructions on liability as a principal or accomplice stressed the need to find a specific intent to kill, these instructions did not cure the defect in the instructions on co-conspirator liability. As the District Court put it: “A reasonable jury could have understood the eo-eonspir-ator language to be an alternate means to establish first degree murder, sans a finding of specific intent to kill.” ’ Dist. Ct. Op. at 27. For similar reasons, the flaw in the co-conspirator liability instructions was not adequately cured by the supplemental instructions on first-degree murder that were given, at the jury’s request, during its deliberations. At that time, the trial judge gave the jury the following “summary on first-degree murder”: “what sets [first-degree murder] apart from second- and third-degree murder is that element of the specific intent to kill either personally, if you find that he did the act, or as a co-conspirator of one who had' the specific intent to kill[.]” App. V, Pt. 2 at 1725. Although these supplemental instructions were accurate, they did not specifically address the theory of co-conspirator liability. “Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict.” Francis v. Franklin, 471 U.S. 307, 322, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). See also Whitney v. Horn, 280 F.3d 240, 256 (3d Cir.2002). Viewing all of the first degree murder instructions together, we conclude that there is a reasonable probability that the jury, consistent with their terms, could have proceeded on the incorrect belief that a specific intent to kill was not needed in order to convict Bronshtein of first-degree murder on the theory of co-conspirator liability. We thus hold that the jury was improperly instructed on the theory of co-conspirator liability. We further" }, { "docid": "16117497", "title": "", "text": "elsewhere in the jury instruction— in the description of different degrees of murder given approximately thirty pages before the voluntary intoxication instruction (Appellants App. at p. 747-51). That law was also correctly explained after the faulty instruction when the court answered a specific jury question about the degrees of murder, and the elements of burglary, and robbery. 808-21. , However, the law on voluntary intoxication insofar as it applies to the charge of first degree murder was explained only at the single instance quoted above. That instruction concluded with a misstatement of the law. There is no question that this instruction would have been critical to a juror’s understanding of the law of voluntary intoxication. It was the only time that the legal consequences of intoxication with respect to specific intent to kill were explained. Cf. Humanik v. Beyer, 871 F.2d 432, 441 (3d Cir.1989) (finding that, where there was no other language in instruction to dilute express instruction that defendant had the burden of proving by a preponderance of the evidence that he had mental disease or defect that negated the intent to kill, burden of proof was imper-missibly shifted to defendant). The Commonwealth notes that the trial court gave the correct instruction for voluntary intoxication immediately before repeating the instruction in which it omitted “not.” It also argues the court instructed the jury that “[v]oluntary intoxication may reduce the crime of murder from first degree, to third degree,” immediately after the incorrect instruction. App. Appendix Vol. Ill, at 789. However, while a single defect does not necessarily make an instruction erroneous, see Henderson, a defect in a charge may result in legal error if the rest of the instruction contains language that merely contradicts and does not explain the defective language in the instruction. See Francis, 471 U.S. at 322, 105 S.Ct. 1965; see also United States v. Hernandez, 176 F.3d 719, 733 (finding an instruction on reasonable doubt to be unconstitutional, where a later clarification of the term did not serve to “unring the bell”). As the Supreme Court explained in Francis, 471 U.S. at 322, 105" } ]

[ { "docid": "11573174", "title": "", "text": "consider Freeman’s pre-filing conduct in determining that her plan had been proposed in good faith within the meaning of § 1325(a)(3). According to the district court, a debtor’s pre-petition conduct, however egregious, is “simply outside the scope” of the Bankruptcy Act. Although we certainly agree that a debtor’s pre-petition culpability is not a basis, standing alone, for denying her the benefits of the bankruptcy law, we do not agree that it is a wholly irrelevant matter in determining whether to confirm a Chapter 13 plan. In Deans v. O’Donnell, 692 F.2d 968 (4th Cir.1982), we held that “the totality of circumstance must be examined on a case by case basis” in determining whether a plan meets the general good faith standard of § 1325(a)(3). Id. at 972. Factors to be considered include, but are not limited to, the percentage of proposed repayment, the debtor's financial situation, the period of time payment will be made, the debtor’s employment1 history and prospects, the nature and amount of unsecured claims, the debtor’s past bankruptcy filings, the debt- or’s honesty in representing facts, and any unusual or exceptional problems facing the particular debtor. Id. The object of the inquiry is to determine whether or not, considering “all militating factors,” there has been “an abuse of the provisions, purpose, or spirit” of Chapter 13 in the proposal or plan. Id., quoting 9 Collier on Bankruptcy 9.20 at 319 (14th ed. 1978). Although Deans did not refer specifically to a debtor’s prepetition conduct in its non-exhaustive list of factors relevant to the good faith inquiry, a majority of courts addressing the issue have expressly considered evidence of pre-filing conduct and the possible nondischargeability (under Chapter 7) of objecting creditors’ claims in evaluating a debtor’s good faith under § 1325(a)(3). See, e.g., In re Chase, 43 B.R. 739 (Bankr.D.Md.1984) (remanding for consideration of evidence that claim based on consent judgment arose out of promise by creditor not to testify at debtor’s sentencing hearing following his conviction for sexually assaulting creditor’s daughter); Matter of Wall, 52 B.R. 613 (Bankr.M.D. Fla.1985) (considering evidence that adverse state court judgment was" } ]

[ { "docid": "7244213", "title": "", "text": "Zellner stated that section 1325(b)’s “ability to pay,” or disposable income, criteria subsume most of the factors identified in In re Estus. A Chapter 13 plan, therefore, according to the Zellner Court, is proposed in good faith if the debtor commits all of her projected disposable income over a three year period to make payments under the plan, and the Court finds that the debtor has accurately stated her debts and expenses; that she has made no fraudulent misrepresentations to the Court; and that she has not unfairly manipulated the Code. No evidence was presented at the confirmation hearing that Ms. Burris inaccurately stated her debts and expenses, with one exception which will be discussed below. Mr. Petry does not contend that Ms. Burris made any fraudulent misrepresentations to this Court, or that she has unfairly manipulated the Code. The Sixth Circuit, in Metro Employees Credit Union v. Okoreeh-Baah (In re Okoreeh-Baah), articulated a good faith test that considers the ability to pay criteria of section 1325(b) in conjunction with criteria not subsumed in the 1984 amendments to the Code: The bankruptcy court must ultimately determine whether the debtor’s plan, given his or her individual circumstances, satisfies the purposes undergirding Chapter 13: a sincerely-intended repayment of pre-petition debt consistent with the debtor’s available resources. Based upon that articulation of good faith, I find that Ms. Burris is willing to commit all of her available resources to repay her prepetition debts, and that her intentions in accomplishing that goal are sincere. The Eighth Circuit, however, requires a discussion of a debtor’s prepetition conduct as part of its good faith determination. In the Eighth Circuit the leading case on good faith in Chapter 13 is Handeen v. LeMaire (In re LeMaire). In that ease the Court considered the importance of debtor’s prepetition conduct in finding that the plan had not been proposed in good faith. Under the guise of public policy, the LeMaire Court relied heavily upon the fact that LeMaire’s prepetition conduct gave rise to a debt that would have been nondisehargeable had he filed a Chapter 7 case. The facts" }, { "docid": "15853847", "title": "", "text": "of 11 U.S.C. § 1307(c). In other words, a debtor may in good faith restructure debt which was incurred by prepetition bad faith conduct. The nature of the debt itself cannot preclude a Chapter 13 filing, unless the debt was fraudulently incurred without any intention of repayment because of an anticipated abuse of the Chapter 13 process. 11 U.S.C. §§ 1307(c)(4) and (6), 1325(a)(3), and 1330(a); Note also this Court’s opinion in Turpin v. Maupin, 26 B.R. 987 (1983), and citation therein. As will be discussed, the Court notes that the finding that a debtor qualifies for relief under Chapter 13 despite debt incurred by prepetition bad faith conduct, does not resolve the question of that debt- or’s good faith in regard to specific plan proposals. Ill The final question in the instant case is whether the Court should deny confirmation of Debtors’ proposed Plan. It is the determination of the Court that confirmation of Debtors’ Plan, as proposed, should be denied. A Plaintiffs’ object to confirmation of Debtors’ proposed Plan on the basis of 11 U.S.C. § 1325(a)(4), which requires that a Chapter 13 plan propose payment to unsecured creditors of an amount at least equal to the amount which would be distributed under 11 U.S.C. Chapter 7. Plaintiffs argue that the subject debt would be nondischargeable under 11 U.S.C. Chapter 7 and, therefore, that Debtors’ proposed Plan proposes payment of an amount “less than the amount that would be paid on such claim if [Debtors] estate were liquidated under [11 U.S.C. Chapter 7].... ” As earlier decided by the Court, however, ... [A]bsent evidence of demonstrated bad faith, the nondischargeability of a debt under 11 U.S.C. § 523 is, as a general rule, wholly unrelated to the confirma-bility of a Plan under 11 U.S.C. § 1325. 11 U.S.C. § 1325(a)(4) provides that a Chapter 13 plan must provide for payment to unsecured creditors of at least an amount equal to what would be paid had the debtor filed under Chapter 7. The fact of nondischargeability under 11 U.S.C. § 523, however, is irrelevant to the calculation of the" }, { "docid": "1572203", "title": "", "text": "first two payments thereunder, and who admittedly would not have sufficient income to fund plan until debtor-wife returned to work, was not feasible, and could not be confirmed). Accordingly, Ventures Trust has not shown that the Debtor lack the ability to make payments as proposed to warrant denial of confirmation based on the requirements of § 1325(a)(6). Objections to confirmation on this basis will therefore be overruled. Objection Under § 1325(a)(3): Plan Proposed in Good Faith The Objection next argues that the requirement that “the plan has been proposed in good faith and not by any means forbidden by law” has not been met. 11 U.S.C. § 1325(a)(3). While assessing good faith for purposes of plan confirmation depends on the “totality of the circumstances,” the primary question is whether the debtor is “really trying to pay the creditors to the reasonable limit of his ability or is he trying to thwart them?” In re Schaitz, 913 F.2d 452, 453-54 (7th Cir. 1990); See In re Smith, 286 F.3d 461, 467 (7th Cir.2002) (“[A] Chapter 13 plan may be confirmed despite even the most egregious pre-filing conduct where other factors suggest that the plan nevertheless represents a good faith effort by the debt- or to satisfy his creditor’s claims.”); See also In re Rimgale, 669 F.2d 426, 433 (7th Cir.1982) (“[b]roadly speaking, the basic inquiry should be whether or not under case circumstances there has been abuse of Chapter 13’s provisions, purpose, or spirit.”). Ventures Trust argues that the previously referenced inaccuracies in the Debtor’s schedules — involving the now adjusted condo association debt and disputed mechanics lien — along with other more speculative allegations that the Debtor has “manipulated” his income and expenses, also show the Debtor’s lack of good faith in proposing the Plan. Inaccuracies in the financial disclosures could potentially be relevant in “determining whether a debtor has dealt fairly with his creditors,” but do not, without more, suggest an intent to thwart creditors. See Smith, 286 F.3d at 465-66. At this stage, however, the Debt- or’s initial inaccuracies have been resolved. Claims that the Debtor manipulated his" }, { "docid": "22473433", "title": "", "text": "failed to consider Edwin Smith’s prepetition conduct here. Although the bankruptcy judge did not make any explicit findings about the pre-petition conduct, he indicated that he was aware of the nature of Mr. Smith’s debt to Ms. Watson. Further, the same bankruptcy judge had handled Mr. Smith’s Chapter 7 proceeding and had granted summary judgment to Ms. Watson on her objection to discharge in Chapter 7. We therefore are confident that the bankruptcy court considered Mr. Smith’s pre-petition conduct before it confirmed Mr. Smith’s plan. Although the nature of the underlying debt, not dischargeable in Chapter 7, weighs against a finding of good faith, this factor alone cannot defeat confirmation of Mr. Smith’s plan. We also take note of Ms. Watson’s statement that Mr. Smith told her that he had fixed things so that she would not recover. Without any evidence of how he had so arranged his affairs, other than the bankruptcy court’s noting that Mr. Smith did not have a checking account, we cannot say that the bankruptcy court’s conclusion that bad faith had not been established is clearly erroneous. Ms. Watson next points to the low percentage repayment of her debt as evidence of Mr. Smith’s bad faith. Unless he receives significant pay raises over the repayment period, Mr. Smith will end up repaying less than 10% of what he currently owes Ms. Watson. Congress has not adopted a minimum payment for confirmation of a Chapter 13 plan, and we cannot read one into the Code through its good faith requirement. See In re Rimgale, 669 F.2d at 431-32. Further, it is difficult to see how the low percentage of the payout adds anything to the other good faith factors and the other statutory requirements. The percentage repayment is a function of the size of the debt relative to the debtor’s anticipated earnings; this factor is not relevant to determining whether the debtor has acted in good faith. The Code requires a debtor to commit all of his disposable income to repayment of his creditors over the term of his Chapter 13 plan. If this process, honestly" }, { "docid": "22473429", "title": "", "text": "at 432-33). In applying this last factor, we suggested in Rimgale that “the bankruptcy court may wish to examine the timing of the bankruptcy filings, the proportion of the total unsecured debt that is represented by the [tort] judgment, and the equities of classifying together ordinary consumer debt and a judgment debt arising out of intentionally tortious conduct.” In re Rimgale, 669 F.2d at 433 n. 22. Other courts of appeals have adopted a similar approach, providing courts within their jurisdictions a non-exhaustive list of factors to guide the good faith inquiry. See, e.g., In re Young, 237 F.3d at 1174 (quoting Flygare v. Boulden, 709 F.2d 1344, 1347-48 (10th Cir.1983)); In re Estus, 695 F.2d 311, 317 (8th Cir.1982). In this case we are concerned with three factors bearing on Mr. Smith’s good faith, as raised by Ms. Watson: Mr. Smith’s pre-petition conduct, including the nature of the underlying debt, see In re Smith, 848 F.2d at 818-19, the sufficiency of the pay out, see Flygare, 709 F.2d at 1348, and the accuracy of Mr. Smith’s financial disclosures in his Plan, see In re Rimgale, 669 F.2d at 432. Ms. Watson argues that Mr. Smith’s prepetition conduct demonstrates that his Plan was not filed in good faith. Specifi cally, Ms. Watson points to Mr. Smith’s fraudulent behavior while serving in a fiduciary capacity and to a statement Ms. Watson alleged Mr. Smith made to the effect that he had so arranged his affairs as to preclude her from recovering her judgment against him. “Under a ‘totality of the circumstances’ test, a debt’s nondischargeability under Chapter 7 arising from a debtor’s prefiling conduct is relevant to the debtor’s good faith.” In re Smith, 848 F.2d at 818. There is no question that Mr. Smith’s treatment of Ms. Watson was deplorable and it appears from this record that Mr. Smith abused the trust Ms. Watson placed in him for his own pecuniary benefit. It is also clear, if the Plan is confirmed, that Mr. Smith will not only pay far less than the $267,000 he currently owes to Ms. Watson, but" }, { "docid": "1572205", "title": "", "text": "income and expenses are speculative and unsupported and fail to suggest any bad faith where, as here, the Debtor commits all disposable income to the Plan for the maximum commitment period. Id. at 466 (“We consider whether the plan accurately reflects the debtor’s financial condition and affords substantial protection to unsecured creditors. If there are inaccuracies, we consider whether these flaws are ‘an attempt to mislead the bankruptcy court[ ]’; we also consider whether the plan, taken as a whole, indicates ‘a fundamental 'fairness in dealing with one’s creditors[.]’” (internal citations omitted)) Remaining allegations — that Debtor’s schedules in prior cases included the same inaccuracies and that the Debtor is a “serial filer” — have no direct bearing on whether his current Plan is proposed in good faith. Smith, 286 F.3d at 467 (disregarding prepetition misconduct where “a good faith effort by the debtor to satisfy his creditor’s claims” could be determined). Claims that the Debtor filed for bankruptcy in the eve of foreclosure are also irrelevant, where, as here, Congress has provided a more expansive remedy than State law would generally provide by allowing Chapter 13 debtors to cure any default on long term debt under § 1322(b)(5). Cf. Smith, 286 F.3d at 465-66 (“[S]imply availing oneself of the more liberal provisions ... is not sufficient to constitute bad faith.”). Accordingly, Ventures Trust has not shown that the Debtor’s Plan was proposed in bad faith to warrant denial of confirmation under § 1325(b)(3), and objections in this respect will be overruled. Objection Under § 1325(a)(7): Bankruptcy Petition filed in Good Faith Finally, the Ventures Trust claims that confirmation should be denied because the requirement that “the action of the debtor in filing the petition was in good faith” is not demonstrated. 11 U.S.C.A. § 1325(a)(7). “The good faith determination with regard to the filing of a Chapter 13 petition is also a fact intensive inquiry to be determined by looking at the totality of circumstances.” Matter of Love, 957 F.2d 1350, 1354 (7th Cir.1992). In this context, the focus of the good faith inquiry is “whether the filing is" }, { "docid": "13169960", "title": "", "text": "the creditor is making a new loan to the debtor in the amount of the current value of the collateral. Under this theory, the most appropriate interest rate is the current market rate for similar loans at the time the new loan is made, not some other unrelated arbitrary rate. V. THE “GOOD FAITH” REQUIREMENT We cannot tell exactly what the Bankruptcy Court did on the issue of whether “the plan has been proposed in good faith” under section 1325(a)(3) of Chapter 13. Despite the fact that this subsection says only that the wage earner plan must be “proposed” in good faith, not that the debt in question be incurred in good faith, it is clear from the record that the Bankruptcy Court assessed the automobile payment plan in light of the debtor’s pre-plan conduct in creating the debt. The Bankruptcy Court found that the debtor puffed her income somewhat on her loan application but not so egregiously as to constitute fraud or dishonesty. Because, however, the integrity of the debtor’s conduct in securing the loan was questionable, the Bankruptcy Court stated at the confirmation hearing that it would refuse to confirm a plan that reduced her car payments below the contract price. Yet in its written opinion, the Bankruptcy Court in effect reduces the interest rate on the loan from the contract rate of 21% to a rate of 10%. In light of its comments at the confirmation hearing and in other parts of its written opinion, it is unclear why the Bankruptcy Court changed its mind. We, therefore, remand the case to the Bankruptcy Court for clarification on this subject as well. On the “good faith” issue the creditor and the debtor appear to have diametrically opposed positions. The creditor says that the debt in question was fraudulently obtained and that a plan composing such a debt is necessarily in bad faith. The debtor claims that under the good faith provision the Court can only look to see whether the proposed plan or arrangement is made in good faith, i.e., whether it is in line with the debtor’s" }, { "docid": "1572204", "title": "", "text": "plan may be confirmed despite even the most egregious pre-filing conduct where other factors suggest that the plan nevertheless represents a good faith effort by the debt- or to satisfy his creditor’s claims.”); See also In re Rimgale, 669 F.2d 426, 433 (7th Cir.1982) (“[b]roadly speaking, the basic inquiry should be whether or not under case circumstances there has been abuse of Chapter 13’s provisions, purpose, or spirit.”). Ventures Trust argues that the previously referenced inaccuracies in the Debtor’s schedules — involving the now adjusted condo association debt and disputed mechanics lien — along with other more speculative allegations that the Debtor has “manipulated” his income and expenses, also show the Debtor’s lack of good faith in proposing the Plan. Inaccuracies in the financial disclosures could potentially be relevant in “determining whether a debtor has dealt fairly with his creditors,” but do not, without more, suggest an intent to thwart creditors. See Smith, 286 F.3d at 465-66. At this stage, however, the Debt- or’s initial inaccuracies have been resolved. Claims that the Debtor manipulated his income and expenses are speculative and unsupported and fail to suggest any bad faith where, as here, the Debtor commits all disposable income to the Plan for the maximum commitment period. Id. at 466 (“We consider whether the plan accurately reflects the debtor’s financial condition and affords substantial protection to unsecured creditors. If there are inaccuracies, we consider whether these flaws are ‘an attempt to mislead the bankruptcy court[ ]’; we also consider whether the plan, taken as a whole, indicates ‘a fundamental 'fairness in dealing with one’s creditors[.]’” (internal citations omitted)) Remaining allegations — that Debtor’s schedules in prior cases included the same inaccuracies and that the Debtor is a “serial filer” — have no direct bearing on whether his current Plan is proposed in good faith. Smith, 286 F.3d at 467 (disregarding prepetition misconduct where “a good faith effort by the debtor to satisfy his creditor’s claims” could be determined). Claims that the Debtor filed for bankruptcy in the eve of foreclosure are also irrelevant, where, as here, Congress has provided a more" }, { "docid": "23532601", "title": "", "text": "7, together with the debtor’s discharge in an old Chapter 13 proceeding, indicated the plan was not proposed in good faith. The Fourth Circuit reversed and remanded because the lower courts had “declined to consider” nondischarge-ability of the debt in Chapter 7 and the debtor’s prior discharge under Chapter 13. It reaffirmed its previous decision in Deans, which endorsed the Estus factors. The Neufeld court stated that although the nondischargeability of a debt in Chapter 7 “is not, standing alone, a sufficient basis on which to find bad faith ... it is a relevant factor to be considered in the § 1325(a)(3) good faith inquiry.” The court made little effort, however, to hide its feelings on the matter of dischargeability, going on to say: Resort to the more liberal discharge provisions of Chapter 13, though lawful in itself, may well signal an “abuse of the provisions, purpose, or spirit” of the Act, especially where a major portion of the claims sought to be discharged arises out of pre-petition fraud or other wrongful conduct and the debtor proposes only minimal repayment of these claims under the plan. Similarly, a Chapter 13 plan may be confirmed despite even the most egregious pre-filing conduct where other factors suggest that the plan nevertheless represents a good faith effort by the debtor to satisfy his creditors’ claims. In In re Smith, the Seventh Circuit acknowledged the existence of the 1984 amendment on disposable income, but this made no difference in the result. The debtor there had operated a home repair business which “fleeced senior citizens by making repairs which [the debtor] knew were not necessary.” The State of Indiana obtained judgment against him on behalf of homeowners, whereupon s the debtor filed under Chapter 13. He listed the State as the holder of about half his unsecured debt. Although his plan applied projected three year disposable income to plan payments, unsecured debt received only a 2% dividend. The lower courts found the plan to have been filed in good faith. The Seventh Circuit reversed and remanded. It recognized that under the 1984 amendment good faith" }, { "docid": "22473424", "title": "", "text": "are reviewed de novo, see Meyer v. Rigdon, 36 F.3d 1375, 1378 (7th Cir.1994). A bankruptcy court’s determination that a plan was filed in good faith is a factual finding; therefore, we shall reverse only if the court’s finding was clearly erroneous. See In re Love, 957 F.2d 1350, 1354 (7th Cir.1992). We cannot accept the district court’s determination that Ms. Watson’s good faith argument had been waived by her failure to raise it in the bankruptcy hearing. Ms. Watson, in both her written objections and her counsel’s argument at the hearing, objected to confirmation of Mr. Smith’s Plan on the ground that it was not filed in good faith. She based her objection on three grounds. First, Ms. Watson pointed to Mr. Smith’s prepetition conduct, including his fraudulent conduct and a statement he made to her that he had arranged things so as to preclude her from recovering her judgment against him, as evidence of his bad faith. The bankruptcy court had some of the records from the fraud trial and was aware of Mr. Smith’s conduct, having previously held that this debt was nondischargeable in Mr. Smith’s Chapter 7 proceeding. Second, Ms. Watson contended that Mr. Smith’s plan was in bad faith because of the low amount of the pay out, relative to the overall debt. Third, Ms. Watson argued that Mr. Smith was padding his expenses, understating his income and had structured his assets in such a way as to prevent her from recovering what she was owed. We note at the outset that the obligation of good faith is imposed on the debtor at two stages of a Chapter 13 proceeding. First, the debtor must file his petition for Chapter 13 bankruptcy in good faith. See In re Love, 957 F.2d at 1354-55. Second, the debtor must file his Chapter 13 plan in good faith. See id.; In re Schaitz, 913 F.2d 452, 453 (7th Cir.1990); see also 8 Lawrence P. King et al., Collier on Bankruptcy, at 1325-13 (15th ed.2001). At different times, and at different places in her brief to this court, Ms. Watson" }, { "docid": "16173343", "title": "", "text": "the filing of the petition and to filing of the plan. The Schaitz inquiry is the ultimate issue when considering the circumstances: are the debtors trying to pay their creditors, or are they trying to thwart them? 393 B.R. 655, 661. Brooker’s assertions as to good faith under 11 U.S.C. § 1325(a)(3) are balled up with her assertions as to 11 U.S.C. § 1325(a)(4), which she has no standing to raise. Jongsma has proposed a plan which provides for payment of 28% of allowed unsecured claims. Based upon the record submitted to the court, the court is unable to say that Jongsma’s plan seeks to “thwart” her creditors. Parenthetically, a consideration in this determination is that the Chapter 13 Trustee did not object to confirmation of the plan, which the court would anticipate would be the case if the Chapter 13 Trustee deemed the plan to seek to thwart the interests of unsecured creditors. The principal issue upon which Brooker seeks to base her objections to confirmation is non-disclosure by Jongsma of certain interests in property in her filings of schedules and statement of affairs. It is completely possible for a debtor’s pre-petition conduct and conduct in the actual filing of the case and disclosure of matters in relation to the initial filing of the case to satisfy 11 U.S.C. § 1325(a)(3) if — despite that conduct — the plan proposed by the debtor fairly deals with creditors. As stated in In re Smith, supra, 848 F.2d 813, 819: “Similarly, a Chapter 13 plan may be confirmed despite even the most egregious pre-filing conduct where other factors suggest that the plan nevertheless represents a good faith effort by the debtor to satisfy his creditor’s claims.” (citation omitted). As the parties have acknowledged, the debtor bears the ultimate burden of proof as to satisfaction of the confirmation criteria of 11 U.S.C. § 1325(a). The totality of circumstances, including the plan’s treatment of unsecured claimants, establishes that the “plan has been proposed in good faith and not by any means forbidden by law”, and that Brooker’s objection pursuant to 11 U.S.C. §" }, { "docid": "10242106", "title": "", "text": "bad faith is required to justify the denial of confirmation of a proposed Chapter 13 plan. In this case neither the Chapter 13 Trustee nor any creditor has brought forth any other evidence of bad faith. In consequence, the Court finds that the plan has been proposed in good faith, (citations omitted) 60 B.R. at 554. The significant differences between Greer and the present case are found in the other evidence of bad faith demonstrated by the debtors’ pre-petition conduct, the debtors’ proposed budget, the scheduling of debts and the payments proposed in this amended plan. A. GOOD FAITH AND THE DEBTORS’ PRE-PETITION CONDUCT There were three objections to confirmation filed to the debtors’ proposed original plan. Each objection raised the issue of good faith in addition to other grounds: “[T]his court should find that the debtor’s plan is not proper in a Chapter 13 proceedings [sic].” (GMAC, Doc. 5, at 2); “In other words Debtors are taking refuge under Chapter 13 to pay only the amount necessary on nondischargeable claims leaving at best one percent (1%) to be paid to all other unsecured claims. [I]f this were a case under Chapter 7 Movant’s claim would be nondischargeable pursuant to § 523(a)(2), as debtors grossly mistated [sic] their total indebtedness at the time they gave their written statement to Mov-ant.” (ITT, Doc. 6, at 2); “(2) The plan has not been proposed in good faith as required by 11 U.S.C. § 1325(a)(3)” (Huntington Bank, Doc. 8, at 2). Of these objections, all of which were withdrawn in connection with the proposed original plan and not filed again as objections to the debtors’ proposed amended plan, the objection of ITT, a creditor holding an allowed secured claim and an allowed unsecured claim (Doc. 26), raised several questions concerning the good faith of the proposed original plan which remain present in the proposed amended plan. The debtors obtained a loan from ITT on October 1, 1985. They executed their Chapter 13 schedules on March 7, 1986 and filed their petition on April 28, 1986. The objection of ITT stated; “The net balance" }, { "docid": "22473430", "title": "", "text": "Mr. Smith’s financial disclosures in his Plan, see In re Rimgale, 669 F.2d at 432. Ms. Watson argues that Mr. Smith’s prepetition conduct demonstrates that his Plan was not filed in good faith. Specifi cally, Ms. Watson points to Mr. Smith’s fraudulent behavior while serving in a fiduciary capacity and to a statement Ms. Watson alleged Mr. Smith made to the effect that he had so arranged his affairs as to preclude her from recovering her judgment against him. “Under a ‘totality of the circumstances’ test, a debt’s nondischargeability under Chapter 7 arising from a debtor’s prefiling conduct is relevant to the debtor’s good faith.” In re Smith, 848 F.2d at 818. There is no question that Mr. Smith’s treatment of Ms. Watson was deplorable and it appears from this record that Mr. Smith abused the trust Ms. Watson placed in him for his own pecuniary benefit. It is also clear, if the Plan is confirmed, that Mr. Smith will not only pay far less than the $267,000 he currently owes to Ms. Watson, but will pay her less than her actual losses, unadjusted for inflation. This consideration alone, however, is not sufficient to defeat Mr. Smith’s plan. Congress has made it clear that some debts, although nondischargeable in Chapter 7, may be discharged under the more liberal rules of Chapter 13. See Johnson v. Home State Bank, 501 U.S. 78, 87, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991). We are not free to second-guess Congress’ policy choice in this regard. What is required is “that the plan must be ‘proposed in good faith,’ not that the debt was incurred in good faith.” In re Smith, 848 F.2d at 819 (emphasis in original). “[A] Chapter 13 plan may be confirmed despite even the most egregious pre-filing conduct where other factors suggest that the plan nevertheless represents a good faith effort by the debtor to satisfy his creditor’s claims.” Neufeld v. Freeman, 794 F.2d 149, 153 (4th Cir.1986). Mr. Smith’s pre-petition conduct, without more, is not sufficient for us to conclude that the bankruptcy court’s decision is clearly erroneous. Ms. Watson" }, { "docid": "11854024", "title": "", "text": "good faith under § 1325(a)(3), unless there is a showing of some sort of manipulation, subterfuge or unfair exploitation of the Code by the debtor. Courts adopting this approach take guidance from the Chapter 7 counterpart found in § 707(b)(3). That section requires a court to consider the existence of bad faith of a Chapter 7 debt- or and/or whether the totality of the circumstances of the debtor’s financial situation demonstrates abuse, even where the debtor has otherwise met the objective requirements of the Means Test. Similarly, the intermediate approach reasons, § 1325(a)(3) allows for a more subjective analysis of a debtor’s good faith and the totality of the circumstances, even where the debtor has met the mechanical requirements of § 1325(b). This Court agrees with the intermediate approach. Thus, the primary measure of whether the debtor has committed sufficient income to the plan is the PDI analysis of § 1325(b). This means that, in the majority of cases, a debtor need not commit any more funds to pay unsecured creditors than is required by § 1325(b)(1) in order for the plan to be filed in good faith. But the passage of BAPCPA did not wholly eliminate consideration of a debtor’s ability to pay in the context of a good faith analysis under § 1325(a)(3). In the absence of Tenth Circuit precedent to the contrary, this Court will continue to review plans to determine if the proposed plan constitutes “an abuse of the provisions, purpose or spirit of Chapter 13.” For example, a debtor who deducts substantial amounts of secured debt for luxury items on Form 22C may technically comply with § 1325(b), but be unable to demonstrate that a plan offering only minimal or no payments to unsecured creditors was proposed in good faith. On the other hand, the Court would not expect to hear challenges to a debtor’s good faith in proposing a plan merely because the debtor could pay an additional $50 in months 49 through 60 of the plan. Undoubtedly, it would be helpful to practitioners to articulate an objective test for a good faith analysis" }, { "docid": "15931654", "title": "", "text": "of IRS levies rather than to avoid creditor’s efforts to collect judgment based on nondischargeable claim arising from debt- or’s embezzlement); In re Carsrud, 161 B.R. 246, 253-54 (Bankr.D.S.D.1993) (sustaining objection to confirmation because (1) debtors’ “slick scheme to shun the state court’s verdict and euchre [creditor] from obtaining a meaningful recovery,” included evading making voluntary repayments, engaging in preferential activity in order to qualify under Chapter 13, and (2) payments received by creditor resulted from creditor’s effort to garnish Debtor’s wages and levy against inheritance). A Chapter IS debtor must evidence, in the totality of circumstances, an overall sincere effort to satisfy a claim non-dischargeable in Chapter 7. Where a debtor appears to have made a good faith effort to satisfy creditors’ claims consistent with the debtor’s available resources, even the most egregious pre-filing conduct does not mandate denial of confirmation. E.g., Neufeld v. Freeman, 794 F.2d 149, 153 (4th Cir.1986); see also Metro Employees Credit Union v. Okoreeh-Baah (In re Okoreehr-Baah), 836 F.2d 1030, 1030-34 (6th Cir.1988) (determining necessity for findings in addition to fact that debtors used collateral securing creditor’s loan to secure a second loan as basis for lack of good faith); In re Gillespie, 266 B.R. 721, 727 (Bankr.N.D.Iowa 2001) (finding good faith, despite small dividend to be applied to debt arising from assault conviction, where debtor paid “significant amount of disposable income beyond his plan payments” and committed future income to making payments). Such post-filing good faith effort may fail to provide good faith sufficient for confirmation, however, where a debtor’s pre-filing conduct indicates a lack of overall sincerity in paying creditors. See In re Kurtz, 238 B.R. at 830 (denying confirmation, despite debtor’s apparent post-filing sincerity in allotting disposable income to pay creditor, in part because of debtor’s pre-filing transfer of assets which were motivated solely by threat of civil judgment). Considering a debtor’s pre-petition conduct in order to determine whether a debtor’s plan is a good faith effort to satisfy a claim which arose out of prepetition fraud is not at cross-purposes with the admittedly liberal provisions of Chapter 13, under which" }, { "docid": "22473431", "title": "", "text": "will pay her less than her actual losses, unadjusted for inflation. This consideration alone, however, is not sufficient to defeat Mr. Smith’s plan. Congress has made it clear that some debts, although nondischargeable in Chapter 7, may be discharged under the more liberal rules of Chapter 13. See Johnson v. Home State Bank, 501 U.S. 78, 87, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991). We are not free to second-guess Congress’ policy choice in this regard. What is required is “that the plan must be ‘proposed in good faith,’ not that the debt was incurred in good faith.” In re Smith, 848 F.2d at 819 (emphasis in original). “[A] Chapter 13 plan may be confirmed despite even the most egregious pre-filing conduct where other factors suggest that the plan nevertheless represents a good faith effort by the debtor to satisfy his creditor’s claims.” Neufeld v. Freeman, 794 F.2d 149, 153 (4th Cir.1986). Mr. Smith’s pre-petition conduct, without more, is not sufficient for us to conclude that the bankruptcy court’s decision is clearly erroneous. Ms. Watson contends that this case is controlled by our decision in Smith. See In re Smith, 848 F.2d at 818-21. The debtor, who owned and operated a home repair business, defrauded senior citizens by making unnecessary repairs. See id. at 814. The State of Indiana obtained a judgment against him for violations of the state’s Deceptive Consumer Sales Act. See id. Without appealing the judgment, the debtor filed a Chapter 13 petition three months later. See id. We reversed the decision of the bankruptcy court, which had confirmed the debtor’s Chapter 13 plan over the objection of a judgment creditor. See id. at 822. Specifically, we vacated the bankruptcy court’s decision and remanded for further proceedings because the bankruptcy court failed to consider the debtor’s pre-petition conduct in making the good faith determination. See id. at 821. We specifically declined to express an opinion on whether the plan should be confirmed on remand. See id. at 822. Smith would be of assistance to Ms. Watson only if she were able to demonstrate that the bankruptcy court" }, { "docid": "23532602", "title": "", "text": "debtor proposes only minimal repayment of these claims under the plan. Similarly, a Chapter 13 plan may be confirmed despite even the most egregious pre-filing conduct where other factors suggest that the plan nevertheless represents a good faith effort by the debtor to satisfy his creditors’ claims. In In re Smith, the Seventh Circuit acknowledged the existence of the 1984 amendment on disposable income, but this made no difference in the result. The debtor there had operated a home repair business which “fleeced senior citizens by making repairs which [the debtor] knew were not necessary.” The State of Indiana obtained judgment against him on behalf of homeowners, whereupon s the debtor filed under Chapter 13. He listed the State as the holder of about half his unsecured debt. Although his plan applied projected three year disposable income to plan payments, unsecured debt received only a 2% dividend. The lower courts found the plan to have been filed in good faith. The Seventh Circuit reversed and remanded. It recognized that under the 1984 amendment good faith “does not require a specific amount or percentage of payments to unsecured creditors.” But it nevertheless affirmed the “totality of the circumstances” standard which it had previously enunciated in Rimgale. Without citation of authority, the court stated: “The definition of good faith has historically not been limited to the debtor’s accurately disclosing all material information on his plan and intending to fulfill it, but also to [sic] the factors Rimgale sets out, including the ‘debtor’s motive in seeking Chapter 13 relief and ‘circumstances under which debts were incurred.’ ” In Ohio v. Doersam (In re Doersam), the debtor’s plan proposed a 19% dividend on unsecured debt, mostly student loan debt which was nondischargeable in Chapter 7 unless its payment imposed an undue hardship on the debtor. The lower courts had denied confirmation, finding bad faith because of the proposed discharge of the student loan debt and because of the debt- or’s “questionable” budgeting of $400 as a monthly food expense for herself, her working daughter and her grandchild. The Sixth Circuit affirmed based on the" }, { "docid": "15931655", "title": "", "text": "to fact that debtors used collateral securing creditor’s loan to secure a second loan as basis for lack of good faith); In re Gillespie, 266 B.R. 721, 727 (Bankr.N.D.Iowa 2001) (finding good faith, despite small dividend to be applied to debt arising from assault conviction, where debtor paid “significant amount of disposable income beyond his plan payments” and committed future income to making payments). Such post-filing good faith effort may fail to provide good faith sufficient for confirmation, however, where a debtor’s pre-filing conduct indicates a lack of overall sincerity in paying creditors. See In re Kurtz, 238 B.R. at 830 (denying confirmation, despite debtor’s apparent post-filing sincerity in allotting disposable income to pay creditor, in part because of debtor’s pre-filing transfer of assets which were motivated solely by threat of civil judgment). Considering a debtor’s pre-petition conduct in order to determine whether a debtor’s plan is a good faith effort to satisfy a claim which arose out of prepetition fraud is not at cross-purposes with the admittedly liberal provisions of Chapter 13, under which debts resulting from illegal acts such as embezzlement, fraud, and willful and malicious injury, ordinarily may be discharged. Rather, it ensures against manipulation of the statute by debtors who default on obligations ground in dishonesty and who subsequently seek refuge in Chapter 13 in order to avoid, at minimal cost, a nondischargeable debt. Neufeld, 794 F.2d at 153. Thus, a finding of good faith requires that a debtor’s conduct, both pre-and post-filing, must evidence a desire to pay debts to the best of the debtor’s ability. 5. The result of confirming a Chapter 13 plan must be consistent with Code standards.- “A good faith test ... should examine the intentions of the debt- or and the legal effect of the confirmation of a Chapter 13 plan in light of the spirit and purposes of Chapter 13.” Chinichian v. Campolongo (In re Chinichian), 784 F.2d 1440, 1444 (9th Cir.1986); see also In re Rimgale, 669 F.2d at 432 (“The courts retain discretion to prevent [abuse of Chapter 13].... [and] should be mindful ... that the unsecured" }, { "docid": "22473426", "title": "", "text": "has objected to a finding of good faith both in filing the petition and the Plan. In our earlier cases, we have read 11 U.S.C. § 1307(c), which provides for dismissal of a Chapter 13 provision “for cause,” to include a dismissal premised on a debtor’s bad faith in filing the petition. See In re Love, 957 F.2d at 1354; In re Smith, 848 F.2d 813, 816 n. 3 (7th Cir.1988). Although Ms. Watson has not cited § 1307(c), her brief to this court asks us to reverse the bankruptcy court and conclude that neither the petition nor the Plan was filed in good faith. Most of her brief focuses on whether Mr. Smith’s Plan was proposed in good faith, as did almost all of the bankruptcy hearing. We turn first to the petition. On this record, only Mr. Smith’s pre-petition conduct bears on his good faith in filing the petition. Ms. Watson has not pointed toward anything leading up to bankruptcy that would point to a finding of bad faith other than Mr. Smith’s fraudulent conduct with respect to the underlying debt. We have held that simply availing oneself of the more liberal provisions of Chapter 13 to discharge a debt that is not dischargea-ble in Chapter 7 is not sufficient to constitute bad faith. See In re Smith, 848 F.2d at 819. We therefore shall focus our examination on whether the bankruptcy court clearly erred in its determination that the Plan was filed in good faith. Before a bankruptcy court confirms a debtor’s plan under Chapter 13, it must find that the plan was filed in good faith. See 11 U.S.C. § 1325(a)(3). “The provisions of 11 U.S.C. § 1325 ensure that a Chapter 13 plan ... will be properly scrutinized by the bankruptcy court before the plan is confirmed, mitigating the danger of abuse.” In re Young, 237 F.3d 1168, 1174 (10th Cir.2001). In considering whether a plan is filed in good faith, the court asks of the debtor: “Is he really trying to pay the creditors to the reasonable limit of his ability or is he" }, { "docid": "19106464", "title": "", "text": "the plan, to be paid before confirmation, has been paid; (3) the plan has been proposed in good faith and not by any means forbidden by law; (4) the value, as of the effective date of the plan, of property to be distributed under the plan on account of each allowed unsecured claim is not less than the amount that would be paid on such claim if the estate of the debtor were liquidated under chapter 7 of this title on such date; (5) with respect to each allowed secured claim provided for by the plan — (A) the holder of such claim has accepted the plan; (B)(i) the plan provides that the holder of such claim retain the lien securing such claim; and (ii) the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the amount of such claim; or (C) the debtor surrenders the property securing such claim to such holder; and (6) the debtor will be able to make all payments under the plan and to make payments under the plan.” . On reconsideration, the Fifth Circuit supplemented its Chaffin holding with three additional circumstances that might be determinative of good or bad faith. First, \"the bankruptcy court should consider whether the payments under the plan fairly [reflect debtor’s] ability to pay, considering both his [or her] current and projected future income,” although projected income beyond the duration of the plan is not to be considered. Matter of Chaffin, 836 F.2d 215, 216 (5th Cir.1988). Second, in a case where a debt was incurred by fraud, the court ought to consider whether the debtor \"concocted the fraudulent scheme with the intent of using bankruptcy proceedings to avoid repayment.” Id. Finally, although the court has the authority and duly to examine a plan even when no creditor has objected, \"the absence of objection is a relevant consideration, for it may lend equity to the debt- or's position or indicate that the creditor accepts the plan as honestly filed or believes it" } ]

[ { "docid": "14721118", "title": "", "text": "waters, though he claimed that there was one on board. He said that he was running 20 miles an hour at the time of the accident and that his vessel had a speed of 24 miles. But he doubtless was going faster, for in the two hours before he hit the obstruction. he had run 52 miles, and he was going at such a speed when he struck that in spite of the collision he went on 150 yards before the yacht finally came to a stop. We think there can be little doubt that, when the rekpondent-trustees allowed the crib which held the stone abutments to fall into decay so that the roeks were scattered on the bottom of the river, they were maintaining a public nuisance. Of the existence of this nuisance they must be regarded as having had notice, for the testimony shows that the trustee, Henry P. Ramsdell, saw the abutments built by the railroad; that they originally stood about four feet above high water mark and that finally, by the action of the elements, they had become submerged. In such circumstances, the respondents were liable for obstructing a navigable stream and maintaining a nuisance therein to any person who suffered injury thereby. The fact that the railroad had obtained a grant to construct a pier did not permit it, or its successors, to maintain the-pier in a dilapidated condition, unmarked and a danger to navigation. One who maintains a public nuisance on his land, of the existence of which he has notice, or should have notice, is liable for resulting damages to the public. Klepper v. Seymour House Corp., 246 N. Y. 85, 158 N. E. 29, 62 A. L. R. 955; Kilmer v. White, 254 N. Y. 64, 171 N. E. 908; Ahern v. Steele, 115 N. Y. 203, 22 N. E. 193, 5 L. R. A. 449, 12 Am. St. Rep. 778; Edwards Ltd. v. Birmingham Navigations, [1924] 1 K. B. 341; Barker v. Herbert, [1911] 2 K. B. 633; Leahan v. Cochran, 178 Mass. 566, 60 N. E. 382, 53 L. R." } ]

[ { "docid": "11033876", "title": "", "text": "private person. Of course the United States is not liable for torts of that character and obstructions to navigation caused or permitted to remain are not subjects for suits against the United States except where they can be shown to come within some special statute permitting a suit. Such a statute is the “Public Vessels Act” where the United States can be held liable for a tort committed by a public vessel. If the damage was caused by an obstruction such as a rock, pile of iron or other junk, then it would not be liable and that was the situation in the case at bar. We agree with the District Court that the San Marcos had lost its character as a public vessel and as a matter of fact was no longer a vessel of any kind and that the libel was properly dismissed upon that ground. In view of our holding as to the character of the wreck of the San Marcos it is unnecessary to discuss or pass upon the other features of the case. The decree of the District Court is affirmed." }, { "docid": "13946917", "title": "", "text": "this statute asserts failure of duty only “after knowledge of the facts necessitating the performance of duty” by the owner himself, is to extend the limited liability acts into the field of negligence in obstructing navigable waters. It reads into this statute of- 1899 the “privity or knowledge” of' the act of 1851. This amounts to saying that the owner of any vessel negligently sunk, • or negligently left unmarked in a navigable channel, shall not be liable for the acts of his agents in causing or maintaining such nuisance, unless the negligence was “with the knowledge or privity of the owner.” I cannot agree with that interpretation of the statute. As I have already indicated, even before the passage of the act of March 3, 1899, I do not think the limited liability acts had any application to the creation and maintenance of nuisances in navigable waters. So far as private liability is concerned, the act of March 3, 1899, seems to me but declaratory of previously existing maritime law. Compare The Caldy (D. C.) 123 Fed. 802, 804; The Plymouth, 225 Fed. 483, 140 C. C. A. 1. That statute is a part of the Rivers and Harbors Act of the Fifty-Fifth Congress. See 30 Stat. c. 425, U. S. Comp. Sts. Ann. 1916, §§ 9918-9924. A large part of it is a compilation of police regulations concerning the improvement, maintenance, preservation, and protection of navigable waters and of property of the United States in and adjacent to such waters. As there is no common law of the United States prohibiting the obstruction of and creation of nuisances in navigable waters, such legislation was necessary in order to equip the national government with criminal penalties analogous to the power of indictment for public nuisances which the sovereign of England and the states have always exercised. Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1, 8, 8 Sup. Ct. 811, 31 L. Ed. 629. Clearly there is nothing in this legislation which can be fairly construed as cutting down previously existing civil liability for negligent obstruction of navigable" }, { "docid": "6199000", "title": "", "text": "claims against the United States. The district court granted the United States’ motion for summary judgment, holding that the survivors’ claims are not cognizable, and denied as futile the survivors’ motion to amend. The court entered judgment for the United States and this appeal timely followed. We review the grant of summary judgment de novo. See Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002). II The United States, of course, is liable in court only when it has waived its sovereign immunity. Three immunity-waiving statutes are relevant here. The first is the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674 et seq., which generally renders the United States hable for its torts to the same extent as a private actor. The FTCA includes an exception, however, for “[a]ny claim for which a remedy is provided” by either of the other two statutes relevant to this case. 28 U.S.C. § 2680. These are the Public Vessels Act (“PVA”), 46 U.S.C.App. § 781 et seq., and the Suits in Admiralty Act (“SAA”), 46 U.S.C.App. § 741 et seq. The PVA renders the United States liable in admiralty for “damages caused by a public vessel of the United States.” 46 U.S.CApp. § 781. The PVA, however, contains a special reciprocity requirement that permits foreign nationals to sue the U.S. government only if their country of nationality would permit a similar suit by a U.S. citizen. 46 U.S.CApp. § 785. The SAA is broader: it renders the United States liable in admiralty in any case in which, “if a private person or property were involved, a proceeding in admiralty could be maintained.” 46 U.S.CApp. § 742. It contains no reciprocity requirement. One might wonder why the PVA even exists, since the SAA appears to cover all admiralty claims, including those involving a public vessel. The answer lies in history. Until 1960 the SAA applied only to “merchant vessels,” a category mutually exclusive of “public vessels.” See United States v. United Cont’l Tuna Corp., 425 U.S. 164, 167 n. 1, 96 S.Ct. 1319, 47 L.Ed.2d 653 (1976). For this and other reasons, admiralty" }, { "docid": "11033870", "title": "", "text": "the condition of this wreck and its location and marking, the thirty days not having elapsed. The San Marcos, however, had been sunk for some twenty nine years, its location had been shown as a wreck by charts; and buoys had actually been placed to mark it as an obstruction to navigation. It is inconceivable to hold that this wreck and remnants of a vessel are still to be considered as a public vessel and liable to be libelled under the Act hereinabove referred to. The Wreck Statute does not require the government to remove a wreck, but merely provides that when the owner has abandoned it the government may enter, raise it, remove it, or if necessary, blow it up. The Act gives to the government certain rights within certain limitations to carry out its governmental function in making navigable waters safer by removing, destroying or otherwise disposing of dangers to navigation. But no where have we found any authority which places upon the United States Government a liability to pay damages to those who may have suffered losses by shipwreck or damage caused by obstructions to navigation because the government had not sufficiently or adequately marked such obstructions. As a matter of fact, the government does mark old wrecks, which were former public or private vessels, just as it marks shoals, rocks and other dangerous places. It does this in its general public duties and not in the performance of a private ship owner’s duty, or as required by any statute under which it renders itself liable to suit for damages. The Supreme Court decision in the Snug Harbor case shows how the Public Vessels Act deprives the government of its immunity as a Sovereign in the operation of its public vessels and allows a recovery if it can be shown that the government was negligent when one of its ships has sunk and is a menace to navigation. In that case, however, there was no question but that the vessel, although sunken, was still a vessel and the owner was under a duty to comply with the" }, { "docid": "11033869", "title": "", "text": "its owner brought suit. Recovery was had. However, the facts are widely different from those in the instant case. The vessel sank and was wholly submerged, whereas the San Marcos was always visible above the water. No attempt was made to locate the wreck of the Snug Harbor or mark it and the collision by which the Winstead was lost occurred only thirty days after the Snug Harbor had sunk, thus the thirty day period provided by Congress for the presumptive abandonment of a wreck by its owner had not yet expired. See Rivers and Harbors Act of 1899, 33 U.S.C.A. §§ 409 and 414. Under the terms of that Act, a wreck that obstructs navigation remains the responsibility and liability of the owner for a period of thirty days unless he sooner gives notice that he has abandoned same. It will, therefore, be seen that the Snug Harbor had not been abandoned and its owner, which was the government, having consented to be sued as a private owner (Public Vessels Act), was responsible for the condition of this wreck and its location and marking, the thirty days not having elapsed. The San Marcos, however, had been sunk for some twenty nine years, its location had been shown as a wreck by charts; and buoys had actually been placed to mark it as an obstruction to navigation. It is inconceivable to hold that this wreck and remnants of a vessel are still to be considered as a public vessel and liable to be libelled under the Act hereinabove referred to. The Wreck Statute does not require the government to remove a wreck, but merely provides that when the owner has abandoned it the government may enter, raise it, remove it, or if necessary, blow it up. The Act gives to the government certain rights within certain limitations to carry out its governmental function in making navigable waters safer by removing, destroying or otherwise disposing of dangers to navigation. But no where have we found any authority which places upon the United States Government a liability to pay damages to those" }, { "docid": "11033874", "title": "", "text": "charge of and dispose of a private owner’s vessel within such period unless the owner actually gives notice of the abandonment. It is plain to see that the reason for this is that the sunken vessel may have great value and the owner expects to raise or salvage it. If, however, he considers it a loss and wishes the government to step in he can make announcement of the abandonment. In the present case the vessel was owned by the United States and it would have been an idle gesture for it to write a letter to itself giving notice that it had abandoned the vessel and that it, itself, could proceed to remove it, mark it or do anything else it pleased. The appellant has cited a number of authorities and our independent search has disclosed others where vessels which have been wrecked were raised, repaired and some times rebuilt, and were still recognized as subject to maritime liens. But in all of these cases the vessels had continued to retain their character as vessels although temporarily out of use because of the fact that the owners still considered them vessels and actually attempted to raise and use them or purposely retained title. See The Port Hunter, D. C., 6 Fed.Supp. 1009; The George W. Elder, 9 Cir., 206 F. 268. But in the case of the San Marcos the ship was purposely and deliberately shot to pieces, sunk and rendered unusable as a vessel. It was in fact converted into a mass of scrap and pile of junk and there is no evidence or showing that the government ever retained the slightest intention to repair, rebuild or again use this as a ship. The United States is of course not liable for obstructions to navigation as is a private party. A private party may be liable for maintaining a public nuisance such as permitting rocks from stone abutments to be scattered on a river bottom. See Corby v. Ramsdell, 2 Cir., 48 F.2d 701. But in that case the liability was based upon a tort committed by a" }, { "docid": "6395195", "title": "", "text": "death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant for such damage, loss, injury, or death in accordance with the law of the place where the act or omission occurred. Subject to the provisions of this title, the United States shall be liable in respect of such claims to the same claimants, in the same manner, and to the same extent as a private individual under like circumstances, except that the United States ■shall not be liable for interest prior to judgment, or for punitive damages. Costs shall be allowed in all courts to the successful claimant to the same extent as if the United States were a private litigant, except that .such costs shall not include attorneys’ fees.” (Italics supplied) (Amended August 1, 1947 with respect to allowance of compensatory damages in lieu ■of punitive damages in certain cases. Public law, 324, 80th Cong., ch. 446, 1st. Sess.) The wording of the Tort Claims Act is more analogous to the Suits in Admiralty Act than to the Public Vessels Act. Title -46 U.S.C.A, § 742, Suits in Admiralty Act, § 2, provides— “In cases where if such vessel were privately owned or operated * * * a proceeding in admiralty could be maintained at the time of commencement of the action herein provided for, a libel in personam may be brought against the United States * * * provided that such vessel is employed as a merchant vessel * * And therefore cases under the Suits in Admiralty Act would seem to be more persuasive in their applicability here than cases decided under the Public Vessels Act. In United States v. Marine, 4 Cir., 155 F.2d 456, affirming D.C.Md., 65 F.Supp. Ill, it was held that a United States Custom Inspector injured in the discharge of his duties in consequence of a defective landing ladder from a ship owned by the United States, was entitled to" }, { "docid": "13946907", "title": "", "text": "the obstruction caused by it. The court said : “If a person negligently places an obstruction in a highway, he is liable for any injury caused thereby to a traveler using due care. So if a person negligently obstructs navigable waters, he is liable for injuries caused to vessels in the proper use of such waters. * * * When a vessel is sunk by unavoidable accident, in navigable waters, whether in the usual track of navigation or not, the owner, until he abandons, must use due care to prevent injury to other vessels” — citing White v. Crisp, 10 Exc. 312; Brown v. Mallett, 5 C. B. 599. To my mind this statement covers everything that needs to be said about the case at bar. The same principle was asserted in the case of The Snark, [1900] P. D. 105; also in the case of The Utopia, [1893] App. Cas. 492. A sunken vessel in navigable waters, even if abandoned, may, and ordinarily does, constitute a public nuisance. Detroit Water Commissioners v. Detroit, 117 Mich. 458, 76 N. W. 70. Apart from statute, the owner of a sunken vessel had the right to abandon it, and after abandonment would apparently not be liable for maintaining a public nuisance. Rex v. Watts, 2 Esp. 675; Winpenny v. Philadelphia, 65 Pa. 135; Ball v. Berwind (D. C.) 29 Fed. 541. So far as I have been able to discover, it has never hitherto been even contended that liability for creating or maintaining a public nuisance in navigable waters is subject to the limited liability acts. England has had a limited liability act since 1734. Stat. 7 Geo. II, c. 15. Rev. Stats. § 4283', taken from the act of 1851, was grounded mainly upon the English statutes of 26 Geo. Ill, passed in 1783, and 53 Geo. Ill, passed in 1813. But I have not been able to find that in England it has ever been claimed that these English acts limited liability for the negligent obstruction of navigable waters. Our own limited liability act was passed nearly 70 years ago." }, { "docid": "6411173", "title": "", "text": "proceedings. 272 U. S. 675, 47 S. Ct. 289, 71 L. Ed. 472. In reversing, the Supreme Court held that the Suits in Admiralty Act (Act March 9,1920, §§ 3 and 6 [46 USCA §§ 742, 746]) was intended to give an aetion against the United States in eases where the owner of the vessel would be personally liable as well as in cases where only the vessel would be liable. The concluding part of the opinion of the Chief Justice is as follows: “The cause of aetion grows out of the responsibility of the government for a merchant vessel which in the course of its employment had become a danger to navigation and which imposed a duty to avoid that danger. A wreck which is a total loss will not furnish basis for an aetion in rem, as we have assumed; but, if a proceeding in admiralty permitted by the act embraces the principles both of suits in personam and suits in rem, it is a most natural construction of the act dealing with merchant vessels employed by the United States to include, as a suit in personam permits, one for a tort caused by the negligence of the United States in dealing with a wreek of its merchant vessel and its failure to comply with its own navigation laws therewith.” The case has since been submitted on the merits. The uneontroverted facts are that the steamship Snug Harbor, owned and used by the United States solely as a merchant vessel, while on a voyage from Baltimore, Md., to Portland, Me., came into collision August 15, 1920, with the barge Pottsville in tow of the tug Covington, and sank at a point about 4% miles east hy north of Montauk Point Light, and became a total loss. On the 14th of September, following, the barge Win-stead, loaded with coal and in tow of a tug, on a voyage from Norfolk, Va., to Fall River, Mass., without fault of those in charge of the tug or tow, came into contact with the wreck, and, as a result, was sunk, and" }, { "docid": "5687868", "title": "", "text": "were to view the instant obstruction as a wreck in the normal sense — that is, a vessel sunk by reason of collision or other peril of the sea, or simply abandoned in shallow water as an inexpensive means of disposal — the PC 1203 would then be within the ambit of 33 U.S.C. § 409 and a failure to comply with the marking and removal requirements of that section would render the government, like a private party, liable to suit. The present situation is, however, different. The PC 1203 was deliberately put on the shoal by the Navy as a bombing target. We assume, since there is no evidence to the contrary, its action in so doing was pursuant to proper authority. The absolute prohibition in § 409 against sinking a vessel in a navigable channel is obviously not intended to derogate from the federal government’s power to place structures in otherwise navigable channels pursuant to its lawful authority. By the same token, the § 409 requirement that a wreck be promptly removed is obviously not applicable to an obstruction which the government placed there for a proper governmental purpose. The situation, indeed, is less analogous to that of a wrecked vessel as contemplated in the statute than to that of an authorized obstruction placed in a navigable channel pursuant to federal license or, as in this case, by the federal government itself. We conclude that § 409 is neither controlling nor of much help by analogy. We turn next to the plaintiffs’ contention that the government violated the duties imposed by 14 U.S.C. § 86. At the time of the accident, 1971, 14 U.S.C. § 86 provided, “The Secretary [of Transportation] may mark for the protection of navigation any sunken vessel or other obstruction existing on any navigable waters of the United States in such manner and for so long as, in his judgment, the needs of maritime navigation require. The owner of such an obstruction shall be liable to the United States for the cost of such marking until such time as the obstruction is removed or" }, { "docid": "11033866", "title": "", "text": "a remedy to parties damaged by public vessels of the United States and placed them substantially in the same category as privately operated vessels. It is necessary of course under this Act that the object causing the injury be a public vessel and that there be negli gence. The libellant claims that the San Marcos having been a public war vessel belonging to the United States Government was not divested of its character as such a vessel because of the fact that it had been sunken for a period of some twenty nine years. To put it tersely the contention is that once a public ship always a public ship whether floating or sunken and that the government never changed the status of this vessel or took any steps to abandon or remove it. On the other hand, the government contends that when this vessel was used as a target and for all intents and purposes destroyed as a vessel it became an abandoned pile of scrap and junk with no attributes or characteristics of a vessel and that it was so shown on charts and commonly known by seafaring men and that the placing of a buoy to warn other vessels of danger in approaching this spot was but a part of general governmental supervision of navigable waters whereby it endeavors to chart for and warn, navigators of dangers to navigation. The government does this to shoals, rocks, sunken wrecks and other obstructions. If this wreck had lost its character as a public vessel and had become a mere “pile of junk”, as it has been some times denominated in this case, the government would not be responsible for the wreck of the Lexington. Therefore, the first and controlling point in this case to be considered is whether the wreck of the San Marcos was a public vessel within the purview of Section 781, 46 U.S.C.A., at the time that the Lexington collided with it on March 27, 1940. The pertinent portion of the Section is as follows: “A libel in person-am $ * * may be brought against" }, { "docid": "11033865", "title": "", "text": "brought under the Act of 1925, commonly known as the “Public Vessels Act”. 46 U.S.C.A. § 781. Libellant’s case is based upon the claim that the San Marcos was a public vessel of the United States and therefore, within the purview of the Public Vessels Act, and that, although this vessel was sunk many years before, it still remained a public vessel since it had never been abandoned or disposed of by the United States and the United States was, therefore, liable to protect the public from injury by this public vessel. It is further claimed that the Coast Guard was negligent in not replacing the lighted buoy more promptly and that the United States Government is liable for the failure and negligence of .the Coast Guard, which is one of its departments. The Act allowing libels in admiralty against public vessels will be found in 46 U.S.C.A. § 781, and provides that a libel may be filed against the United States for damages caused by a public vessel. In other words, this Act provided a remedy to parties damaged by public vessels of the United States and placed them substantially in the same category as privately operated vessels. It is necessary of course under this Act that the object causing the injury be a public vessel and that there be negli gence. The libellant claims that the San Marcos having been a public war vessel belonging to the United States Government was not divested of its character as such a vessel because of the fact that it had been sunken for a period of some twenty nine years. To put it tersely the contention is that once a public ship always a public ship whether floating or sunken and that the government never changed the status of this vessel or took any steps to abandon or remove it. On the other hand, the government contends that when this vessel was used as a target and for all intents and purposes destroyed as a vessel it became an abandoned pile of scrap and junk with no attributes or characteristics of" }, { "docid": "11033871", "title": "", "text": "who may have suffered losses by shipwreck or damage caused by obstructions to navigation because the government had not sufficiently or adequately marked such obstructions. As a matter of fact, the government does mark old wrecks, which were former public or private vessels, just as it marks shoals, rocks and other dangerous places. It does this in its general public duties and not in the performance of a private ship owner’s duty, or as required by any statute under which it renders itself liable to suit for damages. The Supreme Court decision in the Snug Harbor case shows how the Public Vessels Act deprives the government of its immunity as a Sovereign in the operation of its public vessels and allows a recovery if it can be shown that the government was negligent when one of its ships has sunk and is a menace to navigation. In that case, however, there was no question but that the vessel, although sunken, was still a vessel and the owner was under a duty to comply with the terms of what is commonly known as the “Wreck Statute”, 33 U.S.C.A. § 409 et seq. The Wreck Statute provides that the owner of a vessel, which sinks in a navigable channel, shall have it marked with a buoy or beacon until the vessel is removed or abandoned. Section 414 provides that where such sunken vessel has been an obstruction for more than thirty days, or whenever it can be shown that the obstruction has been abandoned in less time, such sunken vessel shall be subject to be broken up and removed by the Secretary of War at his discretion. In the Snug Harbor case the vessel sank on August 15, 1920, and another vessel collided with the wreck on September 14, 1920, a period of exactly thirty days. The United States was the operator of the Snug Harbor and had not taken any steps to mark the wreck or comply with the terms and requirements of the Wreck Statute. In the instant case the San Marcos had been wholly destroyed as a navigable and" }, { "docid": "22037083", "title": "", "text": "Act, it was intended to give an action against the United States both in cases where the owner of the vessel would be personally liable, and in those where only the vessel would be liable. The sovereignty of the United States raises a presumption against its suability, unless it is clearly shown; nor should a court enlarge its liability to suit beyond what the language requires. It was this view which led us in Blamberg Bros. v. United States, 260 U. S. 452, to hold that, as the substitution by the Suits in Admiralty Act was merely to furnish a balancing consideration for the immunity of the United States from seizure of its vessels employed as merchant vessels previously permitted, the Act did not apply in cases in which the seizure of a merchant vessel of the United States could not be prevented by the Act, in a foreign port and court, where the immunity declared by Congress could not be given effect. In the case at bar, the liability charged in this libel arose from occurrences under the Act of March 3, 1899, c. 425, 30 Stat. 1121, 1152, § 15. The Act is one making appropriations for the construction, repair, and preservation of certain public works and rivers and harbors, and contains regulations for the establishment of harbor lines and for the removal of obstructions in navigable waters of the United States. Its § 15 provides, among other things, that whenever a vessel, raft, or other. craft is wrecked and sunk in a navigable channel, it shall be the duty of the owner of such sunken craft immediately to mark it with a buoy or beacon during the day and a- lighted lantern at night and to maintain such marks until the sunken craft is removed or abandoned; that the neglect or failure of the said owner so to do shall be unlawful; that it shall be the duty of the owner of such sunken craft to commence the immediate removal of the same and prosecute such removal diligently, and failure to do so shall be construed as" }, { "docid": "11033864", "title": "", "text": "repairing and replacing buoys. The work of course took some time as only a limited number of buoys could be handled by the tenders and careful calculations had to be made for replacing and relocation of buoys in proper positions. The entire work of replacing buoys and other aids to navigation took several months and the lighted buoy near the San Marcos wreck was replaced on April 4, 1940. The vessel Lexington with all of its cargo was a total loss. The owner of the vessel, the libellant in this cause, filed a libel against the United States alleging that the United States as the owner of the vessel San Marcos failed to maintain a lighted 'buoy at the time of the collision and that the United States was further negligent in that its Light House Department and Coast Guard Department did not replace the lighted buoy within a reasonable time after the weather conditions had cleared up. The libel prays for damages of $35,000 for the vessel and $6,000 for the cargo. Suit was brought under the Act of 1925, commonly known as the “Public Vessels Act”. 46 U.S.C.A. § 781. Libellant’s case is based upon the claim that the San Marcos was a public vessel of the United States and therefore, within the purview of the Public Vessels Act, and that, although this vessel was sunk many years before, it still remained a public vessel since it had never been abandoned or disposed of by the United States and the United States was, therefore, liable to protect the public from injury by this public vessel. It is further claimed that the Coast Guard was negligent in not replacing the lighted buoy more promptly and that the United States Government is liable for the failure and negligence of .the Coast Guard, which is one of its departments. The Act allowing libels in admiralty against public vessels will be found in 46 U.S.C.A. § 781, and provides that a libel may be filed against the United States for damages caused by a public vessel. In other words, this Act provided" }, { "docid": "11033867", "title": "", "text": "a vessel and that it was so shown on charts and commonly known by seafaring men and that the placing of a buoy to warn other vessels of danger in approaching this spot was but a part of general governmental supervision of navigable waters whereby it endeavors to chart for and warn, navigators of dangers to navigation. The government does this to shoals, rocks, sunken wrecks and other obstructions. If this wreck had lost its character as a public vessel and had become a mere “pile of junk”, as it has been some times denominated in this case, the government would not be responsible for the wreck of the Lexington. Therefore, the first and controlling point in this case to be considered is whether the wreck of the San Marcos was a public vessel within the purview of Section 781, 46 U.S.C.A., at the time that the Lexington collided with it on March 27, 1940. The pertinent portion of the Section is as follows: “A libel in person-am $ * * may be brought against the United States * * * for damages caused by a public vessel of the United States, * * *: Provided, That the cause of action arose after the 6th day of April, 1920 (Mar. 3, 1925, c. 428, § 1, 43 Stat. 1112).” Another point raised in the case is whether or not the Coast Guard was negligent in not replacing buoys. The District Court found against the libellant in these contentions and also found that the Lexington was negligently operated. In view of our finding on the first of these points it is unnecessary for us to go into or discuss the second and third points. The main case cited and relied upon is that of Eastern Transportation Co. v. United States, 272 U.S. 675, 47 S.Ct. 289, 71 L.Ed. 472, decided in 1927, and usually cited as the Snug Harbor case. In that case the vessel Snug Harbor sank after a collision in August 1920. Exactly thirty days later the vessel Winstead ran upon the Snug Harbor wreck and was lost and" }, { "docid": "5687867", "title": "", "text": "M&J Tracy, Inc., 312 F.2d 78, 80 (2d Cir. 1962) (§ 409 reflects a legislative judgment of the standard of care to which owners of sunken vessels should be held in civil actions); Sullivan v. P. Sanford Ross, Inc., 263 F. 348, 350 (2d Cir.), cert. denied, 253 U.S. 492, 40 S.Ct. 586, 64 L.Ed. 1029 (1920) (discussing duty of care of owner of sunken vessel); Lauritzen v. Chesapeake Bay Bridge & Tunnel District, 259 F.Supp. 633, 638 (E.D.Va.1966), aff’d in part; rev’d in part, 404 F.2d 1001 (4th Cir. 1968). The United States too is subject to liability for violation of the statutory duties. Eastern Transportation Co. v. United States, 272 U.S. 675, 692-93, 47 S.Ct. 289, 71 L.Ed. 472 (1927) (an action may be maintained under the Suits in Admiralty Act against the United States for a tort caused by the government’s negligence in dealing with one of its wrecked vessels and its failure to comply with its own navigational laws); The Snug Harbor, 40 F.2d 27 (4th Cir. 1930). Thus, if we were to view the instant obstruction as a wreck in the normal sense — that is, a vessel sunk by reason of collision or other peril of the sea, or simply abandoned in shallow water as an inexpensive means of disposal — the PC 1203 would then be within the ambit of 33 U.S.C. § 409 and a failure to comply with the marking and removal requirements of that section would render the government, like a private party, liable to suit. The present situation is, however, different. The PC 1203 was deliberately put on the shoal by the Navy as a bombing target. We assume, since there is no evidence to the contrary, its action in so doing was pursuant to proper authority. The absolute prohibition in § 409 against sinking a vessel in a navigable channel is obviously not intended to derogate from the federal government’s power to place structures in otherwise navigable channels pursuant to its lawful authority. By the same token, the § 409 requirement that a wreck be promptly removed is" }, { "docid": "11033875", "title": "", "text": "vessels although temporarily out of use because of the fact that the owners still considered them vessels and actually attempted to raise and use them or purposely retained title. See The Port Hunter, D. C., 6 Fed.Supp. 1009; The George W. Elder, 9 Cir., 206 F. 268. But in the case of the San Marcos the ship was purposely and deliberately shot to pieces, sunk and rendered unusable as a vessel. It was in fact converted into a mass of scrap and pile of junk and there is no evidence or showing that the government ever retained the slightest intention to repair, rebuild or again use this as a ship. The United States is of course not liable for obstructions to navigation as is a private party. A private party may be liable for maintaining a public nuisance such as permitting rocks from stone abutments to be scattered on a river bottom. See Corby v. Ramsdell, 2 Cir., 48 F.2d 701. But in that case the liability was based upon a tort committed by a private person. Of course the United States is not liable for torts of that character and obstructions to navigation caused or permitted to remain are not subjects for suits against the United States except where they can be shown to come within some special statute permitting a suit. Such a statute is the “Public Vessels Act” where the United States can be held liable for a tort committed by a public vessel. If the damage was caused by an obstruction such as a rock, pile of iron or other junk, then it would not be liable and that was the situation in the case at bar. We agree with the District Court that the San Marcos had lost its character as a public vessel and as a matter of fact was no longer a vessel of any kind and that the libel was properly dismissed upon that ground. In view of our holding as to the character of the wreck of the San Marcos it is unnecessary to discuss or pass upon the other features" }, { "docid": "6395194", "title": "", "text": "That Act provided that the United States could be sued “for damages caused by a public vessel of the United States”. It did not expressly provide what classes of persons could or could not bring such suits; but did limit liability to damages caused by the vessel. It was an entirely reasonable construction of that general language o hold that it was not the intention of Congress to impose liability for personal damage to members of the ship’s company arising on the ship but not caused by the ship itself as a juridical entity, in view of the long established policy of the United States embraced in statutes providing benefits for navy personnel. By contrast the affirmative provision of section 410(a) of the Tort Claims Act is much more explicit. The section affirmatively confers jurisdiction on the district courts to— “render judgment on any claim against the United States, for money only, accruing on and after January 1, 1945, on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant for such damage, loss, injury, or death in accordance with the law of the place where the act or omission occurred. Subject to the provisions of this title, the United States shall be liable in respect of such claims to the same claimants, in the same manner, and to the same extent as a private individual under like circumstances, except that the United States ■shall not be liable for interest prior to judgment, or for punitive damages. Costs shall be allowed in all courts to the successful claimant to the same extent as if the United States were a private litigant, except that .such costs shall not include attorneys’ fees.” (Italics supplied) (Amended August 1, 1947 with respect to allowance of compensatory damages in lieu ■of punitive damages in certain cases. Public law," }, { "docid": "13946906", "title": "", "text": "the submerged obstruction, so as to warn those rightly using the navigable channel of its presence. The negligent creation and maintenance of this obstruction, in this navigable channel, a great public highway, constituted a public nuisance. The unlawful obstruction of a public highway has always been a public nuisance. Joyce on Nuisances, § 214; Woodman v. Pitman, 79 Me. 456, 462, 10 Atl. 321, 1 Am. St. Rep. 342. Any individual suffering special and material damage from a public nuisance can recover therefor from the one causing such nuisance. Joyce on Nuisances, §§ 218, 219, 220; Staples v. Dickson, 88 Me. 362, 34 Atl. 168. The case ought, in my view, to be determined on the simple and elementary principles laid down by the Massachusetts Supreme Judicial Court in Boston & Hingham Steamboat Co. v. Munson, 117 Mass. 34. That was a case to recover for injuries to the plaintiff’s steamboat caused by running upon a sunken scow belonging to the defendant. The defendant, while trying to raise the scow, left the public unwarned of the obstruction caused by it. The court said : “If a person negligently places an obstruction in a highway, he is liable for any injury caused thereby to a traveler using due care. So if a person negligently obstructs navigable waters, he is liable for injuries caused to vessels in the proper use of such waters. * * * When a vessel is sunk by unavoidable accident, in navigable waters, whether in the usual track of navigation or not, the owner, until he abandons, must use due care to prevent injury to other vessels” — citing White v. Crisp, 10 Exc. 312; Brown v. Mallett, 5 C. B. 599. To my mind this statement covers everything that needs to be said about the case at bar. The same principle was asserted in the case of The Snark, [1900] P. D. 105; also in the case of The Utopia, [1893] App. Cas. 492. A sunken vessel in navigable waters, even if abandoned, may, and ordinarily does, constitute a public nuisance. Detroit Water Commissioners v. Detroit, 117" } ]

[ { "docid": "22152160", "title": "", "text": "resort to his contractual remedies, he cannot be held to the exhaustion requirement. While he correctly recognizes that full exhaustion is not inevitably required by a court before it will exercise its jurisdiction under § 301, he fails to convince us that his complaint alleges facts which would bring him within any of the exceptions to the general rule of exhaustion. In Vaca v. Sipes, supra, the Supreme Court identified the “circumstances [under which] the individual employee may obtain judicial review of his breach-of-contract claim despite his failure to secure relief through the contractual remedial procedures.” 386 U.S. at 185, 87 S.Ct. at 914. The first is “when the conduct of the employer amounts to a repudiation of those contractual procedures”. Id. The second is if: “the union has sole power under the contract to invoke the higher stages of the grievance procedure, and if, as is alleged here, the employee-plaintiff has been prevented from exhausting his contractual remedies by the union’s wrongful refusal to process the grievance.” Id. (emphasis in original). Thus, absent an allegation in the complaint either that the employer repudiated the grievance procedures or that the union wrongfully refused to process the employee’s grievance through arbitration, the court “may not usurp those functions which collective-bargaining contracts have properly ‘entrusted to the arbitration tribunal.’ ” Hines v. Anchor Motor Freight, supra, 424 U.S. at 562-63, 96 S.Ct. at 1055; quoting Steelworkers v. American Manufacturing Co., 363 U.S. 564, 569, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960). After recounting the facts which led to his termination from the company, appellant’s complaint alleged that: “As a result of his being discharged for cause, the plaintiff filed a grievance through his union. On or about February 10, 1975, the plaintiff’s union withdrew from arbitration. The plaintiff has exhausted his rights through the grievance procedure. “The plaintiff believes and therefore avers that the defendant discharged him in violation of the Collective Bargaining Agreement and that the plaintiff was not discharged for cause.” The complaint thus contains no allegation that the employer in any way frustrated the grievance process. And with respect" } ]

[ { "docid": "1855111", "title": "", "text": "these allegations. Defendants objected to plaintiffs inclusion in the proposed pre-trial order of any allegations or claims that were not in the Amended Complaint. At the pre-trial conference held on October 14, 2004, the district court ordered the parties to revise and resubmit the proposed pre-trial order by October 28. They never did so, however, because by then the court had granted all of defendants’ summary judgment motions, finding that defendants’ actions did not rise to the level of constitutional violations. For the most part, the district court declined to exercise supplemental jurisdiction over plaintiffs state law claims. However, it appears that the district court dismissed some of the state law assault and battery claims on the merits. Plaintiff argues that the district court’s dismissal of his case on summary judgment was based on impermissible credibility determinations and findings of fact in favor of defendants. He also argues that it was error for the district court to rule on the summary judgment motions without first resolving the parties’ dispute over which claims would be included in the pretrial order. Plaintiff argues that the district court should not have granted summary judgment based solely on the claims alleged in the Amended Complaint because the discovery process made it clear to all the parties that plaintiff had suffered constitutional deprivations beyond those specifically pled in the pro se Amended Complaint. Finally, he contends that the district court erred in denying his motion to compel discovery against the Love County defendants. We address these arguments below along with the relevant facts as they relate to plaintiffs claims against each defendant. II. Administrative Exhaustion Before turning to the merits of plaintiffs claims, we must first consider the issue of administrative exhaustion. The Prison Litigation Reform Act (PLRA) imposes specific filing requirements on prisoners seeking to file civil actions regarding prison conditions, which include “all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong,” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). One requirement is" }, { "docid": "19095887", "title": "", "text": "are redundant to Plaintiffs’ claims against the District. {Id. at 12.) Plaintiffs concede that because Nalick is no longer Daniel’s teacher, he likely will not have contact with her again, and have agreed to dismiss her from the case. (Pl.’s Mem. 10-11.) However, Plaintiffs have maintained their request for injunctive relief against Schepperly because she continues to have control of the special education program. {Id. at 11.) Plaintiffs did not respond to Defendants’ redundancy claim. Because the Court has concluded that Plaintiffs failed to exhaust, and therefore may not pursue, their ADA and Rehabilitation claims, the Court need not address these arguments at this point. III. Conclusion Defendants’ motion is granted, and Plaintiffs’ Amended Complaint is dismissed without prejudice. This dismissal is without prejudice because Plaintiffs still may seek to exhaust their claims through the administrative process. To the extent there are additional facts that could demonstrate that exhaustion would have been futile or excused, Plaintiffs may amend accordingly, consistent with this Opinion. The Clerk of Court is respectfully directed to terminate the pending motion. (Dkt. No. 14.) SO ORDERED. . Although Daniel is a minor, the Amended Complaint and Plaintiffs' Memorandum of Law use his full name, so the Court will as well. . After the Parties appeared before the Court at a pre-motion conference on July 14, 2010, the Court issued a scheduling order for Defendants' proposed motion for judgment on the pleadings. (Dkt. No. 11.) However, Defendants instead filed the instant motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, maintaining that at the July 14th conference, the Court had indicated that \"if there were matters outside the scope of the pleadings (specifically as to whether Plaintiffs had indeed exhausted their administrative remedies) it could convert the motion for judgment on the pleading [sic] to one for summary judgment.” (Defs.’ Mem. of Law in Supp. of Mot. for Summ. J. Pursuant to Rule 56 (\"Defs.’ Mem.”) 1 n. 1.) Defendants further request that because counsel for both Parties advised the Court of matters outside the Complaint at the July 14th conference, the Court convert" }, { "docid": "10368383", "title": "", "text": "or arguments that would defeat defendants’ arguments for dismissal and argued that the proposed amendment therefore would be futile. See Defendants’ Opposition to Plaintiffs Motion to File Second Amended Complaint at 1-3. Because the Court agrees with defendants that plaintiffs proposed amendment would -be futile, plaintiffs motion for leave to file a second amended complaint is denied. See Fed.R.Civ.P. 15(a); Foman v. Davis 371 U.S. 178, 181-82, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). III. CONCLUSION This Court lacks jurisdiction over plaintiffs non-discrimination claims of unfair labor practices and due process violations. In addition, plaintiff has failed to exhaust her administrative remedies with respect to the majority of her claims of gender and national origin discrimination. Those claims therefore are dismissed. Because the Congressional Accountability Act does not apply to the Library of Congress, plaintiffs claim based on the CAA is dismissed for lack of subject matter jurisdiction. The Court denies defendants’ motion to dismiss and retains jurisdiction with respect to the two claims on which plaintiff has demonstrated a prima facie case: sexual harassment in the form of a hostile work environment and retaliation. Plaintiffs motion for summary judgment is denied as moot and plaintiffs motion for leave to file a second amended complaint is denied on grounds of futility. Finally, Donald Scott is dismissed as a defendant. An Order consistent with this Opinion shall issue this same day. SO ORDERED. ORDER This case came before the Court on defendants’ motion to dismiss or for more definite statement and plaintiffs motions for summary judgment and to file a second amended complaint. For the reasons stated in the Opinion issued this same day, it is hereby ORDERED that defendants’ motion to dismiss plaintiffs complaint [7] is GRANT ED IN PART and DENIED IN PART; it is FURTHER ORDERED that defendants’ motion to dismiss is GRANTED with respect to plaintiffs claims brought under the Federal Service Labor-Management Relations Act and the Congressional Accountability Act. These claims are dismissed, as are plaintiffs due process claims; it is FURTHER ORDERED that defendants’ motion to dismiss is GRANTED with respect to all of plaintiffs" }, { "docid": "22186598", "title": "", "text": "agreement, a breach which could be remedied through the grievance process to the employee-plaintiffs benefit were it not for the union’s breach of its statutory duty of fair representation to the employee. To leave the employee remediless in such circumstances would, in our opinion, be a great injustice”). Here, the governing CBAs establish mandatory grievance procedures that must be followed by employees asserting a violation of the terms of the agreements. It is undisputed that Soremekun did not exhaust these contractual procedures; no official grievance form was filed, no formal grievance meeting was held, and no arbitration proceeding was initiated. So-remekun contends, however, that his failure to exhaust contractual remedies must be excused because the Union never gave him a copy of the CBAs, neglected to advise him of the need to file an official grievance form, and arbitrarily dismissed his complaints in violation of its duty of fair representation. These allegations regarding the Union, however, do not appear in Soremekcun’s first amended complaint. Having failed to include the allegations in his complaint, Soremekun cannot now convert the action into “a hybrid § 301/fair representation claim” by raising the argument for the first time in opposition to a summary judgment motion. See id. at 185, 87 S.Ct. 903 (“We think that another situation when the employee may seek judicial enforcement of his contractual rights arises, if, as is true here, the union has sole power under the contract to invoke the higher stages of the grievance procedure, and if, as is alleged here, the employee-plaintiff has been prevented from exhausting his contractual remedies by the union’s wrongful refusal to process the grievance” (emphasis added)); Waldron v. Boeing Co., 388 F.3d 591, 594 (8th Cir.2004) (“If an employee does not agree with the results reached through the procedures of the CBA, the employee, in order to bring an individual suit directly against the employer for breach of the CBA, must allege and prove the union breached its duty of fair representation” (emphasis added)); Brown v. Witco Corp., 340 F.3d 209, 213 n. 5 (5th Cir.2003) (“The employee must allege and prove" }, { "docid": "22173063", "title": "", "text": "supplement his complaint. The motion to amend the complaint was denied because plaintiff failed to exhaust his administrative remedies as to issues proposed to be added to the complaint. The motion to supplement concerned a First Amendment issue that was denied as futile because plaintiff failed to allege any actual injury, although the magistrate found that plaintiff had exhausted his administrative remedies as to that claim. The denial of these motions was not appealed to this Court and the claims raised in those motions are therefore not before us. We mention the May 28 Order because the magistrate judge curiously did not address whether the claims in the initial complaint were exhausted, despite the fact that he had requested the parties in his November 16, 1996, Order to brief the exhaustion issue as to the claims raised in the initial complaint (which the parties did), and despite the fact that he addressed whether the claims raised in the motions to amend and supplement were exhausted as required by § 1997e(a). On June 2, 1997, the magistrate judge recommended dismissal of all claims against all defendants on the merits. The report and recommendation did not address or otherwise mention whether the claims had been properly exhausted under § 1997e(a). The plaintiff filed objections to the report and recommendation. On September 30, 1997, the district court adopted all of the report and recommendation except it rejected the recommendation to dismiss the equal protection claim as to defendant Mowatt. The district court also retained pendent jurisdiction over the state law claims. The district court did not mention the exhaustion issue in its opinion. Discovery proceeded on the remaining claim against defendant Mowatt. On April 29, 1998, the magistrate judge recommended that plaintiffs claim be dismissed for failure to exhaust administrative remedies. It is not clear from the record before us what precipitated the recommendation at this time. The plaintiff filed objections but the district court overruled them and adopted the report and recommendation on July 23, 1998, thereby dismissing plaintiffs remaining claim against Mowatt without prejudice for failure to exhaust administrative remedies as" }, { "docid": "10936500", "title": "", "text": "and Supply Co., 464 F.2d 870, 875 (3d Cir.1972), the court held that exhaustion of grievance procedures was not required when the employee alleged a conspiracy of employer and union to discharge him from work. The application of the futility rule to the present case makes policy sense. Employees should not be required to exhaust the very internal grievance remedies that they claim cannot afford them relief. In sum, plaintiffs argue both the futility of exhaustion and a breach of the duty of fair representation as exceptions to the requirement that plaintiffs exhaust grievance procedures. The sole issue at the present time, though, is whether plaintiffs’ complaint can withstand a motion to dismiss. Defendants contend that plaintiffs have failed to state a claim because they did not make factually specific allegations, citing, among other cases, Wallace v. American Telephone & Telegraph Co., 460 F.Supp. 755, 760 (E.D.N.Y.1978), Collins v. Wilson Foods Corp., No. 77-2235 (D.Kan., unpublished, March 15, 1978), and Johnson v. Wilson Foods Corp., No. 77-2051 (D.Kan., unpublished, August 26, 1977). The Court finds the Kansas cases cited unpersuasive. Reliance by defendants on Collins is misplaced. The complaints in Collins and the present case contain significant factual differences. In Collins plaintiff claimed only that he received “no aid or support” from his union. The court found this allegation insufficient on its face to survive a motion to dismiss. In the instant case, however, plaintiffs not only make the more specific claim that they filed a grievance and the unions failed to pursue it, they also allege a conspiracy between unions and employer, pointing to the renegotiation agreement. Plaintiffs thus suggest that any further pursuit of internal union remedies would be futile. It is apparent that plaintiffs in the present ease have made much more detailed allegations than those made by the plaintiff in Collins. Although the Johnson case was before the court on a motion to dismiss, which the court properly treated as a motion for summary judgment, the court applied the standard of Amalgamated Association of Street, Electric Railway and Motor Coach Employees v. Lockridge, 403 U.S. 274," }, { "docid": "479605", "title": "", "text": "U.S. 202, 220, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). If treated as a claim brought pursuant to the LMRA, Fiumara must exhaust the grievance and arbitration procedures outlined in the CBA. Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-53, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). After being denied the Van Job, Fiumara did file a Union grievance but he did not advance it past Step 1 of a three-step grievance procedure. Upon being terminated, Fiumara pursued a second grievance, this time through Step 3, but neither he nor the Union pursued arbitration, the final step of the grievance and arbitration procedure. Because Fiumara did not exhaust those procedural prerequisites, Harvard’s motion for summary judgment as to Count IV will be allowed. d. Count V: Breach of the Implied Covenant of Good Faith and Fair Dealing Count V alleges a breach of the implied covenant of good faith and fair dealing. Fiumara does not make clear in the complaint or in his opposition brief how Harvard violated the covenant. In the complaint Fiumara states only that the actions of Harvard constituted “a breach of the covenant of good faith and fair dealing inherent in the contractual relations between [Harvard] and [Fiumara].” Just as with respect to the breach of contract claim, whether Harvard acted in good faith and fairly dealt with Fiumara requires an interpretation and application of the provisions of the CBA. As a result, Count V is preempted and because Fiumara did not exhaust the grievance and arbitration procedure, it will be dismissed. See Maddox, 379 U.S. at 652-53, 85 S.Ct. 614. e. Count VI: Violation of the Labor Management Relations Act Count VI alleges that Harvard violated the LMRA. Fiumara does not state in his complaint the specific ways in which Harvard violated that statute, and his opposition brief does not address this count. As a result, this Court will allow the defendant’s motion for summary judgment as to Count VI. ORDER In accordance with the foregoing, the defendant’s motion to strike (Docket No. 24) is DENIED and the defendant’s motion for summary judgment (Docket" }, { "docid": "11361268", "title": "", "text": "exhaust exclusive grievance and arbitration procedures established by the bargaining agreement.” Id. (citing Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965) (holding that “federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress”) (emphasis in original)). The Vaca decision, however, is not applicable to the present case because Albert’s claim is not that the Individual Defendant’s breached the CBA. Rather, he alleges that they violated the First Amendment by retaliating against him for filing this lawsuit. Since Albert’s claim does not concern the CBA, whether Albert exhausted his administrative remedies is not an issue that this court needs to consider. Indeed, courts have recognized the principle that a plaintiff employee who sets forth a claim based on a federal statute that protects constitutional rights is not subject to the arbitration clause of a CBA. See Grennan v. Nassau County, No. CV-04-2158 (DRH)(WDW), 2007 WL 952067, *22, 2007 U.S. Dist. LEXIS 23087, at * 67 (E.D.N.Y. Mar. 29, 2007) (citing Fayer v. Town of Middlebury, 258 F.3d 117 (2d Cir.2001)). Accordingly, Albert has established the three factors for succeeding in a First Amendment retaliation case, and there is no issue as to the exhaustion of remedies. The Individual Defendant’s motion for summary judgment as to Count Five of the Amended Complaint is DENIED. G. Qualified Immunity The Individual Defendants allege that they are entitled to qualified immunity as to Counts One, Two and Five of the Amended Complaint. As Counts One and Two have been dismissed, the court need only address whether the Individual Defendants are qualifiedly immune from the claim of First Amendment retaliation. The Individual Defendants claim that they enjoy qualified immunity because Chief Marquis’ recommendation for demotion, and Albert’s subsequent transfer and demotion, were each objectively reasonable because the probationary evaluations showed that Albert lacked the judgment and decision making skills required of probationary employees. Furthermore, these decisions were reasonable because Chief Marquis received Internal Affairs investigation reports and" }, { "docid": "697290", "title": "", "text": "DelCostello v. International Brotherhood of Teamsters, 116 L.R.R.M. 2754, 2758-59 (BNA) (D.Md.1984); Edie v. Brundage Co., 546 F.Supp. 837 (W.D.Mich.1982). That is, when the employee-plaintiff “discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the [union’s] alleged violation” of its duty, Shapiro v. Cook United, Inc., 762 F.2d 49, 51 (6th Cir.1985); or when the employee-plaintiff “is barred from proceeding to the next step in the grievance procedure.” Edie, 546 F.Supp. at 839 n. 5. As the Court discussed in its Opinions of June 22, 1984 and September 19, 1985 (on Plaintiff’s motion for reconsideration), the accrual date in this case for Plaintiff’s cause of action against Defendant Local, and thus against Defendant Company as well, was January 26, 1983. Since Plaintiff filed his complaint in this Court more than six months after that date, on August 2, 1983, his claims against Defendant Company for breach of the CBA — all of Counts IY, V, and IX of the complaint, and that part of Count I which alleges a breach of the Company’s duty to conduct a fair and reasonable investigation into the circumstances surrounding Plaintiff’s discharge — must be dismissed. Right to Sue Notice In support of their second ground for dismissal, Defendants argue that receipt of a “right to sue” letter from the EEOC is a jurisdictional prerequisite to bringing suit in federal court, and that the Court thus should dismiss this case since Plaintiff did not receive such a notice before filing suit. Plaintiff argues in response that receipt of a right to sue letter is not an absolute requirement for filing a complaint, and that the Court has jurisdiction over his claim because he has exhausted his administrative remedies, as required by 42 U.S.C. § 2000(e)-5(f)(l), by filing a charge with the appropriate state agency (the Michigan Civil Rights Commission) and the EEOC within the allowable time period, and then waiting 180 days before filing suit in this Court. Plaintiff further argues that after he filed his complaint he did request the EEOC to issue a right to sue notice. The" }, { "docid": "5882026", "title": "", "text": "the Second Amended Complaint for purposes of deciding this motion. . Defendant attached a copy of the CBA to its motion to dismiss. (See ECF No. 15, Galligan Decl., Ex. B, 2005-2009 Agreement between Defendant and Union (\"CBA”).) The court has considered the CBA on the instant motion because plaintiff’s proposed amendments to the Second Amended Complaint in her Affidavit include allegations that explicitly reference the union, the union agreement, and the CBA. (See PL Aff. ¶¶ 7-8.) The CBA is, therefore, incorporated by reference into plaintiff’s Second Amended Complaint, as amended by her Affidavit dated 4/27/12, or is at least a document plaintiff had knowledge of and relied upon in bringing this suit. See Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993) (on motion to dismiss \"consideration is limited to the factual allegations in [the] complaint,” \"documents attached to the complaint as an exhibit or incorporated in it by reference,” \"matters of which judicial notice may be taken,” or documents either in \"plaintiff[’s] possession or of which plaintiff!] had knowledge and relied in bringing suit”); see also Zambrano v. USA Waste of N.Y. City, Inc., No. 00-Civ-7990, 2001 WL 80080, at *1 n. 1 (S.D.N.Y. Jan. 31, 2001) (\"The Court considers the collective bargaining agreement as having been incorporated in the complaint by reference in view of the complaint’s references to the 'union agreements' and the union’s alleged breaches of its obligations thereunder.”). . Plaintiff does not directly respond to defendant's arguments that plaintiff's breach of contract claim is a “hybrid\" LMRA § 301 claim, nor does she explicitly state whether or not she intends to allege such a claim in this case. (See generally Opp.) She does, however, cite to the union’s failure to inform her of rights under the CBA as the reason she was unable to exhaust the CBA’s grievance and arbitration procedures. (See, e.g., Opp. at 5, 8-11.) Thus, as discussed infra Section II.B, the court will analyze these allegations as a hybrid LMRA § 301 claim because plaintiff can avoid LMRA § 301’s exhaustion requirement only by relying on" }, { "docid": "11860260", "title": "", "text": "for relief.” Id. at 50 n. 8. On November 22, 2005, Johnson filed motions to compel the District to arbitrate, to stay the action pending resolution of the motion to compel and to amend the complaint to allege that arbitrators in two other cases had determined the 1994 CBA’s arbitration procedure was binding on the District (one of whom was upheld by the D.C. Superior Court) but that the District “still refuses to participate in arbitration of [her] grievance.” Johnson II, 244 F.R.D. at 8 (citing Proposed Mot. to Amend Compl. ¶¶ 39-40, Johnson v. District of Columbia, No. 04-cv-00250 (D.D.C. Nov. 22, 2005)). The court construed the motion to amend as an “attempt ] to plead futility by alleging that the dispute has been resolved and that the District still refuses to engage in arbitration,” id., and concluded that the motion itself was futile because “the claims against the District in Johnson’s amended complaint suffer from the same flaw that fatally afflicted her original complaint,” namely, they do not demonstrate either “administrative exhaustion through completion of the grievance process” or “that resort to administrative remedies would be futile.” Id. at 7-8. The court noted that “ ‘appeal to the PERB on the grounds that the District’s refusal to abide by a valid collective bargaining agreement constitutes an unfair labor practice’ is Johnson’s ‘appropriate remedy’ at this stage.” Id. at 9 (quoting Johnson I, 368 F.Supp.2d at 45 n. 5). Accordingly, the court denied all three motions as to the District and dismissed the action in its entirety. Id. at 10. Johnson filed a notice of appeal on August 16, 2007. II. Johnson contends the district court erroneously dismissed her action against the District because she was not required under District law to exhaust her remedies by petitioning the PERB for relief. We conclude the district court properly dismissed the action because Johnson failed to exhaust the remedy she elected pursuant to D.C.Code § l-616.52(e) — namely the CBA grievance procedure — which became her exclusive remedy under the CMPA and District case law. The CMPA, which governs personnel management," }, { "docid": "10368382", "title": "", "text": "for civil suit under Title VII following exhaustion of administrative remedies and specifying that in any such civil action “the head of the department, agency, or unit, as appropriate, shall be the defendant.”); see also Hackley v. Roudebush, 520 F.2d 108 (D.C.Cir.1975); Wilkins v. Daley, 49 F.Supp.2d 1, 3 (D.D.C.1999); Taylor v. Gearan, 979 F.Supp. 1, 6 (D.D.C.1997). In this case, James H. Billington, the Librarian of Congress, fulfills this role. Donald Scott, the Deputy Librarian, is not a proper defendant. Accordingly, the motion to dismiss Mr. Scott as a defendant is granted. F. Plaintiffs Motion to File Second Amended Complaint On April 9, 2002, plaintiff sought leave to file a second amended complaint, but did not explain the grounds for her motion and did not include a proposed second amended complaint with the motion. See Local Civil Rule 15.1 (“A motion for leave to file an amended pleading shall be accompanied by an original of the proposed pléading as amended.”). Defendants opposed the motion on the ground that plaintiffs motion contained no new facts or arguments that would defeat defendants’ arguments for dismissal and argued that the proposed amendment therefore would be futile. See Defendants’ Opposition to Plaintiffs Motion to File Second Amended Complaint at 1-3. Because the Court agrees with defendants that plaintiffs proposed amendment would -be futile, plaintiffs motion for leave to file a second amended complaint is denied. See Fed.R.Civ.P. 15(a); Foman v. Davis 371 U.S. 178, 181-82, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). III. CONCLUSION This Court lacks jurisdiction over plaintiffs non-discrimination claims of unfair labor practices and due process violations. In addition, plaintiff has failed to exhaust her administrative remedies with respect to the majority of her claims of gender and national origin discrimination. Those claims therefore are dismissed. Because the Congressional Accountability Act does not apply to the Library of Congress, plaintiffs claim based on the CAA is dismissed for lack of subject matter jurisdiction. The Court denies defendants’ motion to dismiss and retains jurisdiction with respect to the two claims on which plaintiff has demonstrated a prima facie case: sexual harassment" }, { "docid": "15387229", "title": "", "text": "a motion for summary judgment is made and supported as provided in this rule [by affidavits, depositions, or answers to interrogatories], an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” [Emphasis added.] Thus, under Rule 56(e), once the Brotherhood had offered its motion, accompanied by affidavits which answered the plaintiff’s allegations regarding his reasons for not resorting to his intra-union remedies, plaintiff was required to offer counter-affidvaits, depositions or answers to interrogatories sufficient to show the existence of a dispute as to a material fact, or have his bare allegations disregarded. Since plaintiff offered no timely response to the defendants’ affidavits, he has, in effect, offered no evidence of any dispute as to the availability of a grievance procedure to correct the wrongs he complained of and no reasons whatsoever for his failure to abide by the grievance procedure of the Brotherhood. In the absence of some explanation for his failure, the district court did not abuse its discretion in granting summary judgment for the defendants. Neither can we say that the district court abused its discretion by refusing to allow the plaintiff to file a late affidavit after argument on the motion to dismiss the amended complaint had been completed. A review of the sequence of events in this case makes it clear that the plaintiff must have become aware long before the August 3 hearing that in order to proceed to a trial on the merits he would have to submit affidavits or some other response supporting his contention that following the grievance procedure would be futile. Plaintiff had suffered a summary judgment against him after filing his original complaint because of his failure to exhaust his intra-union remedies. After he filed his amended complaint, in which he alleged reasons for his failure to exhaust his intra-union remedies, the defendants filed affidavits completely re futing plaintiff’s allegations, thus rendering them totally ineffective under Rule 56(e). Those" }, { "docid": "6071580", "title": "", "text": "days to file a grievance per the CBA, their chance to file any grievance expired five days after they left, well before the “perfunctory audit” by the union could have dissuaded them from following the grievance procedmre. The court noted that Rushing and LaFlamme’s futility plea was further belied by the fact that they, along with the other drivers, filed the complaint in this suit (and on May 29th filed an amended complaint) some six days before the PLC hearing on the Kwapniewski grievance in which an audit was granted. We agree with the district court. In addition, Rushing and LaF-lamme assert a new futility theory before this Court. They claim that in light of how the union handled the McLeod grievance, filing their own would have been futile. While this argument was waived, we take a moment to say that it would not have been futile for Rushing and LaFlamme to file a timely grievance based upon the handling of the McLeod grievance because it was not disposed of by the union on the merits, rather it was disregarded as untimely. Furthermore, both the Kwapniewski and McLeod grievances raised the issue of possible underpayment, but neither presented anything approaching the serious wage-skimming allegation now raised; therefore, it would not have been futile for someone to have raised the issue; it had yet to be squarely raised, or even hinted at. Lastly, the assertions of futility by Rushing and LaF-lamme are little more than that-assertions. See Douglas v. American Info. Technologies, Corp., 877 F.2d 565, 574 (7th Cir.1989) (finding that failure to ex haust grievance procedure was not excused because plaintiffs “mere unsupported assertion of futility was insufficient to raise the issue properly”). Summary judgment was, therefore, proper. D. Motion to Strike The drivers contend that the district court erred in granting AMT’s motion to strike parts of their brief in response to AMT’s summary judgment motion and statement of additional facts. The stricken parts of the brief and fact statement pertained to the drivers’ claim that AMT breached the CBA. AMT argued that the drivers’ facts and allegations on" }, { "docid": "3424048", "title": "", "text": "failed to exhaust their administrative remedies. Id. at 1297-1300. Having dismissed the First Amended Complaint, the Opinion thus denied as moot Plaintiffs’ motion for summary judgment on that complaint. Id. at 1300. In dismissing the First Amended Complaint, the Opinion relied heavily on Howell v. I.N.S., 72 F.3d 288 (2d Cir. Dec. 20, 1995), which had been filed by the Court of Appeals for the Second Circuit after briefing and oral argument by the parties to this action. Howell held, inter alia, that a party need not exhaust its administrative remedies prior to seeking relief in a federal district court when: (1) available remedies provide no genuine opportunity for adequate relief; (2) irreparable injury may occur without immediate judicial relief; (3) administrative appeal would be futile; and (4) in certain instances a plaintiff has raised a substantial constitutional question. Chan, 916 F.Supp. at 1299 (citing Howell, 72 F.3d at 291-92). The Opinion found that Plaintiffs would, upon commencement of deportation proceedings, have the opportunity for review by an immigration judge and the Board of Immigration Appeals (B.I.A.) of their objections to the I.N.S. interpretation of the CSPA. The Opinion thus determined that none of the four exceptions set out in Howell applied; that, therefore, Plaintiffs had not exhausted their administrative remedies; and that, as a result, this Court lacked jurisdiction. The First Amended Complaint was dismissed on this basis, and Plaintiffs’ motion for summary judgment on that complaint was, therefore, denied as moot. The Opinion also denied Plaintiffs’ motion to amend the First Amended Complaint with the “Proposed Fourth Amended Complaint”. Id. at 1308. This latter complaint sought relief along the lines sought in the First Amended. Complaint, but it advanced new grounds for that relief. Most notably, it added a claim that the rights of certain plaintiffs and proposed plaintiffs to equal protection under the law had been violated, because the I.N.S. had denied them adjustment to the status of lawful permanent resident, while granting such status to similarly situated Chinese nationals who had travelled from and reentered the United States during a particular time period. The Proposed Fourth" }, { "docid": "13796104", "title": "", "text": "OPINION RAWLINSON, Circuit Judge. The question before us is whether an employer may refuse to arbitrate a grievance, and later use that refusal to support a claim that the employee has failed to exhaust his arbitral remedies. The answer is no. We hold that when an employer refuses to arbitrate, its action constitutes a repudiation of the collective bargaining agreement as to that grievance. Background Appellant Tarlochan Sidhu (“Sidhu”) appeals the district court’s dismissal of his suit filed under § 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(c), alleging breach of the collective bargaining agreement (“CBA”) terms. The district court dismissed Si- dhu’s claim on the grounds that Sidhu failed to exhaust the grievance procedures contained in the CBA. The district court rejected Sidhu’s argument that Appellee Flecto Company, Inc.’s (“Flecto”) repudiation of the grievance procedures excused Sidhu’s failure to exhaust. We have jurisdiction pursuant to 28 U.S.C. § 1291. Because the district court erred in dismissing Sidhu’s action, we REVERSE. Sidhu was an employee of Flecto, and at all times relevant to this dispute the CBA to which Flecto and the Union are parties governed the employment relationship. Sidhu sustained an industrial injury in 1995, and commenced a leave of absence. Flecto laid off five employees in 1996, including Sidhu. The Union grieved Sidhu’s layoff, and in September 1997, filed a petition to compel arbitration. The district court dismissed the motion because it was untimely. In June 1998, Sidhu presented Flecto with a medical release and asked to return to work. Flecto denied his request. The Union filed another grievance on Sidhu’s behalf. The 1998 grievance alleged that Flecto violated the section of the CBA which governs when employees may return to work after leaving for medical reasons. Although the 1998 grievance was brought to enforce a different section of the CBA, both grievances involved the issue of seniority. Flecto denied the 1998 grievance on the merits and on the basis that the CBA did not apply to Sidhu. The Union requested that the grievance be resolved pursuant to the grievance procedures in the CBA." }, { "docid": "11007258", "title": "", "text": "truck driver incident was fabricated as a pretext to allow defendant to retaliate against him for exercising his rights under the Missouri workers’ compensation laws. On March 24, 1994, the Missouri state court, ex parte, granted plaintiff a TRO and issued defendant a show cause order. On March 25, 1994, plaintiffs union initiated grievance procedures under the CBA on behalf 'of plaintiff. On March 28, 1994, defendant removed plaintiffs state court action to federal district court, pursuant to 28 U.S.C. § 1441(b), on grounds that plaintiffs claim is preempted by § 301 of the LMRA because it seeks to enforce the CBA. Plaintiff moved for remand to state court and moved for injunctive relief similar to the TRO obtained in state court. The district court, in a single order, denied both motions. Humphrey v. Sequentia, Inc., No. 94-0295-CV-W-1 (W.D.Mo. May 17, 1994) (order denying motion for remand and motion for injunctive relief). By notice dated June 15, 1994, plaintiff appealed the district court’s order pursuant to 28 U.S.C. § 1292(a), (b). While the parties were briefing the issues on appeal, plaintiff filed a motion for leave to amend his complaint, which was accompanied by a proposed amended complaint, in the district court. The district court granted the motion. Plaintiffs amended complaint includes federal claims under § 301 of the LMRA in addition to his original claim of retaliatory discharge under Mo.Rev.Stat. § 287.780. Thereafter, defendant moved to dismiss the appeal on grounds that the amended complaint clearly establishes federal jurisdiction, and thus the question of whether the removal to federal court was proper has become moot. Both the merits of the appeal and defendant’s motion to dismiss the appeal are now before this court. II. Discussion A. Motion to Dismiss the Appeal First, we address defendant’s motion to dismiss this appeal as moot. Defendant argues that once plaintiff amended his complaint to add federal claims under the LMRA, the district court clearly acquired jurisdiction over the LMRA claims, 28 U.S.C. § 1331 (federal question jurisdiction), as well as the retaliatory discharge claim. 28 U.S.C. § 1367 (supplemental jurisdiction). Thus, defendant" }, { "docid": "19939014", "title": "", "text": "material, prior to signing); cf. Park, 71 F.3d at 908-09 (holding allegations contained in unsworn, pre-complaint questionnaire prior to filing charge cannot remedy subsequent omission from EEOC charge). Thus, to the extent Marcelus provided this information to the investigator prior to signing his charge, he cannot claim the benefit of this omission. Furthermore, Marcelus has failed to offer any reason for not seeking to amend his charge at a later time. See Marshall v. Fed. Express Corp., 130 F.3d 1095, 1098 (D.C.Cir.1997) (holding plaintiff failed to exhaust where she failed to amend original charge or otherwise notify the EEOC of her claim). For all these reasons, plaintiffs claim for retaliation in Count II cannot survive defendant’s motion to dismiss and must be dismissed. B. Breach of Contract As to plaintiffs breach of contract claim, an employee must similarly exhaust any grievance and arbitration procedures provided for by the collective bargaining agreement prior to bringing suit for breach of contract. See Commc’ns Workers of Am. v. Am. Tel. & Tel. Co., 40 F.3d 426, 428, 434 (D.C.Cir.1994) (recognizing “well-established principle of labor law that disputes subject to mandatory arbitration under a collective bargaining agreement may not be brought to court in lieu of contractual arbitration procedures”). Courts will, however, excuse an employee’s failure to exhaust where the employer has repudiated the grievance procedures, the union has wrongfully refused to pursue the grievance, or it would be futile for the employee to pursue an administrative remedy. See Potts v. Howard Univ., 240 F.R.D. 14, 19 (D.D.C.2007), rev’d on other grounds, 2007 WL 4561147 (D.C.Cir. Dec. 7, 2007); cf. Univ. of D.C. Faculty Ass’n/NEA v. D.C. Fin. Responsibility & Mgmt. Assistance Auth., 163 F.3d 616, 624 (D.C.Cir.1998). None of these occurred here. Indeed, Marcelus does not dispute that the CBA contains a grievance and arbitration procedure or that arbitration is the “method of resolving grievances.” (Compl. ¶ 28 (“CCA/CTF has an Employee Grievance Procedure in place which allows employees to file a grievance against any management action.”).) While he filed a grievance which CCA rejected as untimely, he does not even allege that" }, { "docid": "23278225", "title": "", "text": "touch on the content of any counseling sessions, the parties’ responses to each other’s requests for information, and the alleged futility of the administrative counseling process. C. Defendant’s Motion to Dismiss for Failure to State a Claim and on Statute of Limitations Grounds As discussed above, the D.C. Circuit has instructed the district courts to consider whether other jurisdictional or “non-merits” grounds for dismissing a case exist before ordering jurisdictional discovery. Phoenix Consulting, Inc., 216 F.3d at 40. These other bases for decision are limited in scope by the Court’s obligation to determine that it has subject matter jurisdiction of a party’s claims before determining the merits of those claims. Defendant’s motion pursuant to Fed.R.Civ.P. 12(b)(6), as well as its argument that some of plaintiffs’ claims are barred by the statute of limitations, would require the Court to examine the merits of plaintiffs’ claims before assuring itself that it properly has subject matter jurisdiction over plaintiffs’ claims. Defendant argues that Counts II, III, IV and V do not state cognizable legal claims because Title VII does not create an independent cause of action for the mishandling of discrimination complaints, and because no private cause of action exists for “obstruction of justice.” However, plaintiffs’ second amended complaint alleges that all four counts arise under Title VII. Thus, the claims are subject to Title VIPs exhaustion requirements. Therefore, the Court will not now consider defendant’s arguments that plaintiffs’ claims either fail to state a claim or are barred by the statute of limitations. The Court will, however, entertain these arguments at such time as it is convinced that it may properly exercise jurisdiction over plaintiffs Title VII claims. CONCLUSION Accordingly, upon careful consideration of defendant’s motion to dismiss plaintiffs’ second amended complaint, the opposition and response thereto, the entire record herein, and the applicable statutory and case law, it is hereby ORDERED that defendant’s motion to dismiss [63-1] is DENIED without prejudice subject to reconsideration at such time as the parties have conducted limited jurisdictional discovery; and it is FURTHER ORDERED that plaintiff and defendant shall meet and confer pursuant to Local" }, { "docid": "20021960", "title": "", "text": "New York Guardian Mortgagee Corp. v. Cleland, 473 F.Supp. 409, 420 (S.D.N.Y.1979). Plaintiffs’ Motion to Alter or Amend the Judgment In moving the Court to reconsider its prior opinion in this case, plaintiffs argue that the Court has abused its discretion in dismissing the action without allowing plaintiffs an opportunity to engage in discovery aimed at establishing jurisdictional facts. In support of this proposition plaintiffs cite several cases including Kamen v. AT & T, 791 F.2d 1006, 1011 (2d Cir.1986), in which the Second Circuit noted that in resolving claims that they lack jurisdiction, courts “have required that the party asserting jurisdiction be permitted discovery of facts demonstrating jurisdiction, at least where the facts are peculiarly within the knowledge of the opposing party.” While this may be the general rule, this Court fails to see how even unlimited discovery in the instant action would uncover evidence suggesting that the Court had incorrectly concluded that Mr. Ellis, as Administrator under a Consent Decree, was not subject to the provisions of the APA, or that litigation of the issues raised herein is barred by the doctrine of res judicata. Nor does the Court believe that discovery would aid plaintiffs in establishing facts that would convince the Court that amendment of the Complaint to assert a claim under Section 301 of LMRA would not be futile. Plaintiffs’ exhibits establish that they have not attempted to exhaust exclusive grievance and arbitration procedures established by the Collective Bargaining Agreement. Contrary to plaintiffs’ assertion, the Court reviewed all of the letters attached as exhibits to their Memorandum in Support of Amendment of the Pleadings, several of which were addressed to Union officials and asked for revision of the Group I list. In its decision of January-10, 1992, 780 F.Supp. 1013, the Court specifically noted that none of those letters requested that the Union argue before the Impartial Chairman that the Times had violated § 4-A.2(g) of the Collective Bargaining Agreement. See Opinion dated January 10, 1992 780 F.Supp. at 1017-18 and n. 3. Although the distinction may seem to be overly formalistic, a letter addressed to" } ]

[ { "docid": "14456264", "title": "", "text": "id. § 1961(1)(B); and wire fraud, id. See Complaint ¶ 43. Defendants have moved to dismiss on two grounds; first, that plaintiff has failed to allege adequately two predicate acts and second, that plaintiff has failed to allege adequately a pattern. (1) Predicate Acts For the reasons set forth below, the Court finds that plaintiff has adequately alleged at least two predicate acts. (a) Securities Fraud The Court has already determined that plaintiff has sufficiently alleged that de fendants were engaged in “fraud in the sale of securities.” See discussion supra. (b) Mail and Wire Fraud Under section 1961(1)(B), “racketeering activity” includes “any act which is indictable” under 18 U.S.C. § 1341 (mail fraud) and 18 U.S.C. § 1343 (wire fraud). The elements of an indictable offense under both the mail and wire fraud statutes are: (1) participation in a scheme to defraud and (2) knowing use of the interstate mails or interstate wires to further the scheme. See, e.g., United States v. Gelb, 700 F.2d 875, 879 (2d Cir.), cert. denied, 464 U.S. 853, 104 S.Ct. 167, 78 L.Ed.2d 152 (1983). In addition, “[p]roof of a fraudulent scheme requires evidence showing a specific intent to defraud.” Id. Defendants argue that plaintiff has not alleged these elements adequately; specifically, defendants assert that plaintiff’s complaint should be dismissed for failure to comply with the requirements of rule 9(b). Rule 9(b) applies to allegations of mail and wire fraud as predicate acts under RICO. See, e.g., Equitable Life Assurance Society v. Alexander Grant & Co., 627 F.Supp. 1023, 1028 (S.D.N.Y.1985) (citations omitted); Rich-Taubman Associates v. Stamford Restaurant Operating Co., Inc., 587 F.Supp. 875, 878 (S.D.N.Y.1984) (citation omitted); cf. Moss v. Morgan Stanley, Inc., 719 F.2d 5, 19 (2d Cir.1983), cert. denied, 465 U.S. 1025, 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984). As mentioned above, courts in this circuit have generally held that under 9(b), the time, place, and content of the alleged misrepresentations, as well as the speaker, must be identified. See, e.g., Luce, 802 F.2d at 54 (citations omitted). With respect to the allegations of mail fraud, plaintiff’s complaint satisfies the" } ]

[ { "docid": "19281202", "title": "", "text": "re Sumitomo Copper Litigation, 995 F.Supp. 451, 455 (S.D.N.Y.1998) (quoting Ray Larsen Associates, Inc. v. Nikko America, Inc., No. 89 Civ. 2809, 1996 WL 442799, at *5 (S.D.N.Y. Aug. 6, 1996)). Because of this dichotomy, we briefly address the elements of plaintiffs mail and wire fraud claims. A complaint alleging mail and wire fraud must show (1) the existence of a scheme to defraud, (2) the defendant’s knowing or intentional participation in the scheme, and (3) the use of interstate mails or transmission facilities in furtherance of the scheme. S.Q.K.F.C., Inc. v. Bell Atlantic Tricon Leasing Corp., 84 F.3d 629, 633 (2d Cir.1996). At the same time, any alleged predicate acts involving fraud must be pled with the same specificity required by Rule 9(b). Moore, 189 F.3d at 172-73; Mills, 12 F.3d at 1176. Here, plaintiffs claim against Web fails because of the insufficiency of its pleadings against Web related to both the second and third elements of mail and wire fraud. First, the Amended Complaint is barren of facts that could support an inference that Web used either mail or wire “in furtherance of the scheme.” Where a complaint does not delineate specifics regarding the defendant’s use of mail or wire, there can be no predicate act of mail or wire fraud. Bernstein v. Misk, 948 F.Supp. 228, 239 (S.D.N.Y.1997) (citing McCoy v. Goldberg, 748 F.Supp. 146, 154 (S.D.N.Y.1990)). See also Qantel Corp. v. Niemuller, 771 F.Supp. 1361, 1369 (S.D.N.Y.1991) (requiring plaintiffs to identify number of telephone calls máde and dates on which they were made to plead wire fraud with particularity). Although material omissions may violate the mail and wire fraud statutes (see United States v. Mittelstaedt, 31 F.3d 1208, 1217 (2d Cir.1994); United States v. Federal Record Service Corp., No. 99 Civ. 3290, 1999 WL 335826, at *17 (S.D.N.Y. May 24, 1999)), plaintiffs must \"identify the purpose of the mailing within the defendant’s fraudulent scheme.\" Moore, 189 F.3d at 173 (quoting McLaughlin v. Anderson, 962 F.2d 187, 191 (2d Cir.1992)); Lorentzen v. Curtis, 18 F.Supp.2d 322, 330 (S.D.N.Y.1998). \"[A]llegations of predicate mail and wire fraud acts should" }, { "docid": "2417271", "title": "", "text": "with even greater urgency in civil RICO actions.” Plount v. American Home Assurance Co., Inc., 668 F.Supp. 204, 206 (S.D.N.Y.1987). In addition to providing each defendant with a meaningful opportunity to prepare his defenses, “the complaint should inform each defendant of the nature of his alleged participation in the fraud.” DiVittorio v. Equidyne Extractive Indus., 822 F.2d 1242, 1247 (2d Cir.1987). C. Predicate Acts 1. 10(b)-10b-5 Claims For the reasons discussed above, Lou has failed to plead adequately the Section 10(b) claims and thus a Section 10(b) claim cannot be considered as sufficiently alleged to constitute a predicate act for RICO. 2. Mail and Wire Fraud as Predicate Acts The requirements of Rule 9(b) “appl[y] with equal force to allegations of mail and wire fraud as predicate RICO civil offenses.” Rich-Taubman Assoc. v. Stamford Restaurant Operating Co., 587 F.Supp. 875, 878 (S.D.N.Y.1984). Where the alleged securities fraud violations underlying mail and wire fraud claims are not pleaded with the particularity required by Rule 9(b), the mail and wire fraud claims must be dismissed under Rule 9(b). Bresson v. Thomson McKinnon Securities, Inc., 641 F.Supp. 338, [1986-87 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 92,855 at H 94,158 (S.D.N.Y.1986). To find violations of the mail and wire fraud statutes, Lou must show “(1) participation in a scheme to defraud and (2) knowing use of the interstate mails or interstate wires to further the scheme.” Connors v. Lexington Ins. Co., 666 F.Supp. 434, 450 (E.D.N.Y.1987) (citing United States v. Gelb, 700 F.2d 875, 879 (2d Cir.1983), cert. denied, 464 U.S. 853, 104 S.Ct. 167, 78 L.Ed.2d 152 (1983)). It is the use of mail or interstate wire communications in furtherance of the scheme — not the fraudulent scheme itself — that is the predicate act. United States v. States, 488 F.2d 761, 767 (8th Cir.1973), cert. denied, 417 U.S. 909, 94 S.Ct. 2605, 41 L.Ed.2d 212 (1974). In finding violations of the mail and wire fraud statutes, the courts have interpreted broadly the meaning and scope of “scheme to defraud.” In Durland v. United States, 161 U.S. 306, 313, 16 S.Ct. 508, 511, 40" }, { "docid": "1304627", "title": "", "text": "fraud, the government “must show that the defendant (1) participated in a scheme to defraud; and (2) knowingly used the mails to further the scheme.” United States v. Gelb, 700 F.2d 875, 879 (2d Cir.), cert. denied, 464 U.S. 853, 104 S.Ct. 167, 78 L.Ed.2d 152 (1983). See United States v. Corey, 566 F.2d 429, 430 n. 2 (2d Cir.1977); United States v. Cyphers, 556 F.2d 630, 632 (2d Cir.), cert. denied, 431 U.S. 972, 97 S.Ct. 2937, 53 L.Ed.2d 1070 (1977). In addition, “[pjroof of a fraudulent scheme requires evidence showing a specific intent to defraud.” Gelb, 700 F.2d at 879. See also United States v. Bronston, 658 F.2d 920, 927 (2d Cir.1981) (“to make out a mail fraud violation, the Government must show that the scheme was devised with the specific intent to defraud, ... that the use of the mails in furtherance of the scheme was reasonably foreseeable, ... that ... any nondisclosures or affirmative misrepresentations must have been material, ... [and] that some actual harm or injury was at least contemplated ... ”) (citations omitted), cert. denied, 456 U.S. 915, 102 S.Ct. 1769, 72 L.Ed.2d 174 (1982). But see United States v. Newman, 664 F.2d 12, 20 (2d Cir.1981) (not required that government prove contemplation of harm in mail fraud case based upon breach of fiduciary duty by a private employee), cert. denied, 464 U.S. 863, 104 S.Ct. 193, 78 L.Ed.2d 170 (1983). Evidence that the mails were used in furthering Rodolitz’s insurance claim is uncontroverted. Rodolitz, however, claims that the government provided no proof that he acted with an intent to defraud or harm the insurance company or that his activities constituted a fraudulent scheme. He contends that he received only what he was due under the insurance policy, to wit, the actual value of the loss sustained in the windstorm. He urges that any recovery he may have been awarded in excess of the actual value of the loss was due to a good faith error in estimation of the cost of repair. Rodolitz contends that because he got only that to which he" }, { "docid": "10069857", "title": "", "text": "mail fraud claim rests on allegations that a letter mailed on or after September 17, 1975 contained fraudulent assertions of fact regarding the use of proceeds from the offering for the limited partnership, the inclusion in the closing documents of sale to Arlington of a certification and budget reflecting the cost of the movie, and evaluations or appraisals of the value of the film. It too indisputably is pleaded sufficiently to place Gordon on notice of the claim against him. The elements of an indictable offense under the federal mail fraud statute are “(1) the existence of a scheme to defraud, and (2) the use of the mails ... in furtherance of the fraudulent scheme.” In re Gas Reclamation, Inc. Sec. Litig., 659 F.Supp. 493, 512 (S.D.N.Y. 1987) (quoting Tryco Trucking Co. v. Belk Stores Servs., 634 F.Supp. 1327, 1333 (W.D.N.C.1986)). Plaintiffs have pleaded a scheme to defraud (fraudulent sales of limited partnership interests) and use of the mails to further the scheme (the September 17 letter). Gordon argues as a second point that the letter was mailed subsequent to the time Biscayne purchased its interest in Arlington, and hence could not have been relied upon by plaintiffs, or sent in furtherance of the scheme to defraud. This contention is not persuasive. The law is clear that a letter mailed after the victim has parted with his money suffices to support a mail fraud claim if it is intended to lull the plaintiff into a false sense of security. United States v. Lane, 474 U.S. 438, 451-52, 106 S.Ct. 725, 733-34, 88 L.Ed.2d 814 (1986); United States v. Otto, 742 F.2d 104, 108 (3d Cir.1984), cert. denied, 469 U.S. 1196, 105 S.Ct. 978, 83 L.Ed.2d 980 (1985); United States v. Jones, 712 F.2d 1316, 1320-21 (9th Cir.), cert. denied, 464 U.S. 986, 104 S.Ct. 434, 78 L.Ed.2d 366 (1983); see United States v. Sampson, 371 U.S. 75, 80-81, 83 S.Ct. 173, 175-76, 9 L.Ed.2d 136 (1962). One can make the reasonable inference from the amended complaint that this letter at least was mailed with that intent. Gordon’s final argument is" }, { "docid": "6544158", "title": "", "text": "the Act, and under state securities law. As already established, the Complaint alleges a Section 10(b) claim with sufficient particularity against defendants Prudential-Bache and Condron. Because a separate Section 10(b) claim is not brought against defendant King, however, the particularity of the Section 10(b) predicate act allegation with respect to him must be considered. Paragraph 25 of the Complaint sets forth in detail the date of King’s alleged fraudulent statements, to whom these statements were given, and the substance of the statements. However, unlike the allegations as to Condron and Prudential-Bache, there are no facts alleged in the Complaint that link King to the creation of the scheme or that establish a motive and opportunity to defraud. Absent such allegations, the general and conclusory aver-ments of scienter fail to satisfy the particularity requirement of Fed.R.Civ.P. 9(b). See Beck, 820 F.2d at 50; Connecticut Nat’l Bank v. Fluor Corp., 808 F.2d 957, 962 (2d Cir.1987). Having concluded that the Complaint alleges the Section 10(b) predicate act with sufficient particularity as to defendants Prudential-Bache and Condron but not as to King, the court may now consider whether the Complaint also alleges the predicate acts of mail and wire fraud in conformity with Fed.R.Civ.P. 9(b). The elements of mail fraud, 18 U.S.C. § 1341 (1982), are participation in a scheme to defraud and knowing use of the mails to further that scheme. See United States v. Gelb, 700 F.2d 875, 879 (2d Cir.), cert. denied, 464 U.S. 853, 104 S.Ct. 167, 78 L.Ed.2d 152 (1983). The elements of wire fraud, 18 U.S.C. § 1343 (1982), include participation in a scheme to defraud and knowing use of interstate communications to further that scheme. See United States v. Corey, 566 F.2d 429, 430 n. 2 (2d Cir.1977). With respect to mail fraud, the Complaint alleges on information and belief that the “defendants or some of them” mailed false Offering Memoranda, false financial reports, and false transaction reports to investors in the Partnerships. The Complaint is vague, however, with respect to the financial and transaction reports. For example, although plaintiff alleges on information and belief that" }, { "docid": "1304626", "title": "", "text": "in the light most favorable to the Government, any rational trier of facts could have found the defendant guilty beyond a reasonable doubt.” United States v. LeRoy, 687 F.2d 610, 616 (2d Cir.1982) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)), cert. denied, 459 U.S. 1174, 103 S.Ct. 823, 74 L.Ed.2d 1019 (1983). Defendant, therefore, bears a very heavy burden. United States v. Carson, 702 F.2d 351, 361 (2d Cir.), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 77 L.Ed.2d 1335 (1983). We find that the defendant clearly failed to meet his heavy burden with regard to the three mail fraud convictions. The government presented ample evidence from which a jury could find beyond a reasonable doubt that defendant conducted a scheme to defraud and the use of the mails in furtherance thereof. Although a closer question, we also find that the record pro vides sufficient evidence for a jury to find, beyond a reasonable doubt, defendant guilty of tampering with a witness. A. Mail Fraud To establish mail fraud, the government “must show that the defendant (1) participated in a scheme to defraud; and (2) knowingly used the mails to further the scheme.” United States v. Gelb, 700 F.2d 875, 879 (2d Cir.), cert. denied, 464 U.S. 853, 104 S.Ct. 167, 78 L.Ed.2d 152 (1983). See United States v. Corey, 566 F.2d 429, 430 n. 2 (2d Cir.1977); United States v. Cyphers, 556 F.2d 630, 632 (2d Cir.), cert. denied, 431 U.S. 972, 97 S.Ct. 2937, 53 L.Ed.2d 1070 (1977). In addition, “[pjroof of a fraudulent scheme requires evidence showing a specific intent to defraud.” Gelb, 700 F.2d at 879. See also United States v. Bronston, 658 F.2d 920, 927 (2d Cir.1981) (“to make out a mail fraud violation, the Government must show that the scheme was devised with the specific intent to defraud, ... that the use of the mails in furtherance of the scheme was reasonably foreseeable, ... that ... any nondisclosures or affirmative misrepresentations must have been material, ... [and] that some actual harm or injury was at least contemplated" }, { "docid": "6232622", "title": "", "text": "the court stated that when section 13(d) and similar provisions are violated, “the RICO provisions ... have no application as ... an alternative or cumulative remedy for private plaintiffs alleging securities fraud.” Bayly, 1198,834 at para. 15. Moreover, 18 U.S.C. § 1961(1)(D) requires evidence of a sale. Neither proxy solicitation nor appellees’ shareholder derivative suit constitutes a “sale” of securities. Accordingly, failure to file under sections 13(d) and 14(a) of the 1934 Act is not a RICO “predicate act.” Appellants allege the “predicate acts” of wire and mail fraud. Criminal mail fraud, 18 U.S.C. § 1341, is a RICO “predicate act” 18 U.S.C. § 1961(1)(B). The second clause in the statute, however, requires that such a violative act be perpetrated “for obtaining money or property by means of false or fraudulent pretenses.” 18 U.S.C. § 1341. While proof of actual fraud is unnecessary, Farrell v. United States, 321 F.2d 409, 419 (9th Cir.1963), cert. denied, 375 U.S. 992, 84 S.Ct. 631, 11 L.Ed.2d 478 (1964); United States v. Siegel, 717 F.2d 9 (2d Cir.1983), use of the mail with false or fraudulent pretenses for the specific purpose of causing pecuniary loss must be alleged. United States v. Dixon, 536 F.2d 1388 (2d Cir.1976). See Sigmond v. Brown, 828 F.2d 8, 9 (9th Cir.1987); Siegel, 717 F.2d at 9. As the Second Circuit stated in Dixon, involving proxy solicitation: [0]ur research has discovered [no case] which has sustained a conviction for mail fraud on the basis of nothing more than the failure to mail a correct proxy solicitation where this was not in furtherance of some larger scheme contemplating pecuniary loss to someone or direct pecuniary gain to those who designed it. 536 F.2d at 1399. Similarly, the record in this case does not support mail fraud. The allegation of wire fraud is also unsupported, since there is no evidence of interstate wire communication. Title 18, U.S.C. § 1343; compare Utz v. Correa, 631 F.Supp. 592, 596 (S.D.N.Y.1986). Finally, appellants assert that the shareholder derivative suit and alleged “threats” made to a bank director constitute acts of “extortion” under RICO, 18" }, { "docid": "9352328", "title": "", "text": "statutes.” Bankers Trust Company v. Feldesman, 648 F.Supp. 17, 34 (S.D.N.Y.1986). To be viable, a RICO complaint must allege facts which would, if proved, constitute acts indictable under the listed statutes. In this sense, RICO is derivative. In the preceding sections of this Opinion, we addressed the legal sufficiency of the underlying securities fraud allegations with respect to each defendant against whom such allegations have been made. We concluded that all of these claims except for those asserted against Peat Marwick were properly pleaded and could not be dismissed as. a matter of law. Allegations which are sufficient to sustain a claim of securities fraud may also ground a claim of “racketeering activity.” With respect to Peat Marwick, there are, as we discuss infra, sufficient allegations of mail and wire fraud to sustain the RICO counts pleaded in the Amended Complaint. Accordingly, we find that the Amended Complaint adequately pleads facts which, if proved, would support the conclusion that the RICO defendants engaged in predicate acts of racketeering activity through violations of the federal securities laws. The RICO plaintiffs allege that certain of the defendants carried out the securities fraud through a series of separately indictable acts of federal mail and wire fraud. RICO’s definition of “racketeering activity” includes mail and wire fraud. 18 U.S.C. § 1961(1). The elements of an indictable offense under the federal mail and wire fraud statutes are “(1) the existence of a scheme to defraud, and (2) the use of the mails or interstate wires in furtherance of the fraudulent scheme.” Tryco Trucking Co. v. Belk Stores Services, 634 F.Supp. 1327, 1333 (W.D.N.C.1986). A scheme to defraud is a plan whose object is “to deprive one of property through fraudulent or deceptive means, such as material misrepresentation [or] concealment____” Id. The factual allegations set forth in the Amended Complaint, assumed true for the purposes of these motions, adequately allege a scheme to defraud. The Abish Investors frame a picture of falsely positive factual representations about the merits and track record of the gas reclamation program, which when communicated in the context of a packaged investment" }, { "docid": "18996345", "title": "", "text": "Trustee has adequately alleged an enterprise. (ii) Predicate Acts Although the Amended Complaint alleges a series of transactions which resulted in depletion of the debtor’s estate by some $280,000, the pleading falls short of describing with particularity the bankruptcy, wire and mail fraud. To be viable, a complaint alleging RICO violations must contain facts which would, if proved, constitute acts indictable under the statutes listed in 18 U.S.C. § 1961(1). And, “the pleading of predicate acts for a RICO claim must meet the particularity requirements of Rule 9(b), Fed.R.Civ.P., where the acts are based in fraud.” Gregoris Motors v. Nissan Motor Corporation, 630 F.Supp. 902, 912 (E.D.N.Y.1986); accord, First Federal Savings and Loan Association v. Oppenheim, Appel, Dixon & Co., 629 F.Supp. 427 (S.D.N.Y.1986); Rich-Taubman Associates v. Stamford Restaurant Operating Co., Inc., 587 F.Supp. 875 (S.D.N.Y.1984). As to the alleged acts of mail fraud, nowhere in the Amended Complaint does the Trustee allege that the enterprise made use of the mails to perpetuate a fraud. The Amended Complaint alleges only that transfers of funds were accomplished through the “use of the mail and/or wire services.” The Trustee also alleges generally that “the mails were used in connection with and in furtherance of other aspects of the ... enterprise_” General allegations as these, however, are insufficient to meet the particularity requirements of Fed.R.Civ.P. 9(b). See First Federal, supra, 629 F.Supp. at 444; Gregoris Motors, supra 630 F.Supp. at 913. Nor does the Amended Complaint pass muster with respect to the allegations of wire fraud. To plead an indictable offense under the wire fraud statute, one must allege the existence of (or intention to devise) a scheme or artifice to defraud and the use of interstate wires in furtherance of that fraudulent scheme. 18 U.S.C. § 1343; Tryco Trucking Co. v. Belk Stores Services, 634 F.Supp. 1327, 1333 (W.D.N.C.1986); In re Gas Reclamation, Inc. Securities Litigation, supra, 659 F.Supp. at 512. A scheme to defraud is a scheme designed “to deprive one of property through fraudulent or deceptive means, such as material misrepresentation (or) concealment....” Id. at 512 quoting Tryco Trucking Co.," }, { "docid": "12550680", "title": "", "text": "rise to a strong inference” that he did. See Ross v. A.H. Robins Co., 607 F.2d 545, 558 (2d Cir.1979). In their memorandum in opposition to the present motion, the Alberti plaintiffs contend that their complaint’s allegation that Abrams was an in-house attorney for the various entities involved in the syndication gives rise to an inference that he was “well aware of the factual misrepresentations in these materials.” Abrams was not an insider of the Rothschild Group or Sacramento Associates, and his knowledge cannot be inferred solely from the fact that he served as assistant in-house counsel for the entities involved in the syndication. See Morin v. Trupin, 711 F.Supp. at 110 (“merely alleging that a professional has performed services for other defendants is an insufficient basis for inferring scienter”); Dannenberg v. Dorison, 603 F.Supp. 1238, 1241 (S.D.N.Y.1985) (same); cf. The Limited, Inc. v. McCrory Corp., 683 F.Supp. 387, 394 (S.D.N.Y.1988) (role as auditor does not imply scienter). Moreover, simply reciting the talismanic formula that “these defendants ... willfully, knowingly or recklessly intended that plaintiffs and other investors would rely thereon in purchasing the Sacramento Associates Limited Partnership interests,” see e.g., Alberti Comp. 11314, does not constitute an adequate pleading of scienter. The Alberti complaint fails to specify how or when Abrams became aware of facts that made the Offering Materials misleading. Because Abrams’s scienter has not been properly pleaded, the 10(b) claim cannot be asserted as a predicate act under RICO. Mail and Wire Fraud Claim To establish that a defendant has committed an indictable offense under the federal mail and wire fraud statutes, a plaintiff must allege and prove “(1) the existence of a scheme to defraud, and (2) the use of the mails or interstate wires in furtherance of the fraudulent scheme.” In re Gas Reclamation, Inc., Secs. Litig., 659 F.Supp. 493, 512 (S.D.N.Y.1987) (citations omitted). Mail and wire fraud must be pleaded in conformity with Rule 9(b). Rich-Taubman Assocs. v. Stamford Restaurant Operating Co., 587 F.Supp. 875, 878 (S.D.N.Y.1984). Because the mail and wire fraud claims premised on inadequately pleaded securities fraud violations must be dismissed," }, { "docid": "575859", "title": "", "text": "1025, 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984). Or plaintiffs must allege that the defendant conspired to engage in such a pattern of racketeering activity. 18 U.S.C. § 1962(d). “Racketeering activity” is defined to include, among other crimes, (i) any act which is indictable under 18 U.S.C. § 1341 (relating to mail fraud), 18 U.S.C. § 1343 (relating to wire fraud), and (ii) “any offense involving ... fraud in the sale of securities ... punishable under any law of the United States.” Second, plaintiffs must allege they were injured in their business or property “by reason of a violation of section 1962.” 18 U.S.C. § 1964(c). a. Whether Peat Marwick violated section 1962 (1) “Racketeering activity” The Class Complaint alleges that Peat Marwick violated the mail and wire fraud statutes. The EMI/Zinn Complaint alleges that Peat Marwick engaged in mail fraud and “fraud in the sale of securities.” Peat Marwick contends that the proposed complaints fail to state the required elements of any of these offenses with the particularity required by Rule 9(b) of the Federal Rules of Civil Procedure. That rule imposes a heightened pleading burden whenever fraud is alleged in order to provide defendants with fair notice of the claims, to protect them from harm to reputation or goodwill due to unfounded allegations, and to reduce the number of strike suits. See Bernstein v. Crazy Eddie, Inc., 702 F.Supp. at 976. A complaint should specify the time, place, speaker, and content of alleged misrepresentations. Luce v. Edelstein, 802 F.2d 49, 54 (2d Cir.1986). (A) Mail and wire fraud To state a claim for mail fraud, under 18 U.S.C. § 1341, or for wire fraud, under 18 U.S.C. § 1343, the complaint must allege (1) the existence of a scheme to defraud, (2) defendant’s knowing or intentional participation in the scheme, and (3) the use of interstate mails or wire communications in furtherance of the scheme. See Griffin v. McNiff 744 F.Supp. 1237, 1255 (S.D.N.Y.1990) (mail fraud). (1) Existence of a scheme Beyond any question, the two complaints allege the existence of a scheme to defraud with sufficient particularity." }, { "docid": "11719931", "title": "", "text": "770 F.2d 308, 315 (2d Cir.1985), cert. denied, 474 U.S. 1058, 106 S.Ct. 800, 88 L.Ed.2d 776 (1986), the Second Circuit held “that under section 1962(c) a corporate entity may not be simultaneously the ‘enterprise’ and the ‘person’ who conducts the affairs of the enterprise through a pattern of racketeering activity.” The enterprise alleged here, however, is not an “individual, partnership, corporation, association, or other legal entity,” 18 U.S.C. § 1961(4), but rather a “group associated in fact although not a legal entity.” Id. Where “[t]he enterprise alleged is an association in fact of a group of ... individuals, while the persons to be held liable are the individual defendants who participated in the association by committing predicate acts which related to and furthered the association’s purported common purpose,” the person and the enterprise are not the same. In Re Gas Reclamation, Inc. Securities Litigation, 659 F.Supp. 493, 517-18 (S.D.N.Y.1987). See also, In Re Energy Systems Equipment Leasing Securities Litigation, 642 F.Supp. 718, 740, 741 (E.D. N.Y.1986) (“enterprise composed of an association-in-fact, even if made up entirely of individual defendants deemed to be § 1961(3) ‘persons,’ is to be viewed for purposes of RICO claims as possessing a separate existence from its individual members ... the various defendants constitute persons under RICO, while the interaction and relationship between these defendants with regard to the alleged scheme ... comprises an association-in-fact enterprise separate and distinct from those individual persons”); Fustok v. Conticommodity Services, Inc., 618 F.Supp. 1074, 1076 (S.D.N.Y. 1985) (“association in fact which constitutes a RICO enterprise is not merely a synonym for the collection of ‘individuals’ which form the association, but instead it is a distinct entity”). Galerie Furstenberg, therefore, has sufficiently alleged a RICO enterprise. C. Mail and Wire Fraud Violations To plead the predicate offenses of mail and wire fraud, a plaintiff must allege: “ ‘(1) a scheme to defraud, and (2) the use of the mails or interstate wires in furtherance of the fraudulent scheme.’ ” In Re Gas Reclamation, Inc. Securities Litigation, 659 F.Supp. at 512 (quoting Tryco Trucking Co. v. Belk Stores Services, Inc.," }, { "docid": "18465039", "title": "", "text": "273 (S.D.N.Y.2000) (“common law fraud and conversion [ ... ] are not acts of racketeering activity under RICO.”); Behette v. Saleeby, 842 F.Supp. 657, 661 (S.D.N.Y.1994) (breach of fiduciary duty not “racke teering activity” under 18 U.S.C. § 1961); Jenkins v. Sea-Land Service, Inc., No. 92 Civ. 2380(PKL), 1993 WL 33406, *6 (S.D.N.Y. Feb. 4, 1993) (none of the acts alleged'—fraud, conversion, conspiracy, and coercion—was racketeering activity pursuant to § 1961(1)). A plaintiff alleging mail or wire fraud must plead that the defendants engaged in “(i) a scheme to defraud (ii) to get money or property, (iii) furthered by the use of interstate mail or wires.” U.S. v. Autuori, 212 F.3d 105, 115 (2d Cir.2000). In addition, a complaint alleging mail or wire fraud must allege both that the defendant acted with scienter (i.e. knowingly participated in the scheme), and that the misrepresentations were material. Id.; see also S.Q.K.F.C., Inc. v. Bell Atlantic Tricon Leasing Corp., 84 F.3d 629, 633 (2d Cir.1996). Although mail or wire communications that do not contain false information may satisfy the transmission element of the offenses, the mail or wire communications must be “incident to an essential part of the scheme” which itself has a fraudulent or deceptive purpose. Schmuck v. United States, 489 U.S. 705, 712, 715, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). The complaint in this action alleges that the defendants’ racketeering activities “involved at least four schemes to defraud the Jordan Trust,” including (1) “inducing The Jordan Trust to deliver Five Million ($5,000,000) Dollars to Beacon under false pretenses;” (2) “misrepresenting the existence of the Class J Shares, subjecting The Jordan Trust’s monies to the claims and liens of Beacon’s creditors and the making, and concealing from The Jordan Trust, of prohibited investments with The Jordan Trust’s monies;” (3) “misappropriating, and converting, $472,945 from Beacon;” and (4) “misappropriating, and converting, participatory interests in Russian Government or Governmental currency instruments purchased by Beacon for $751,384.” (ComplV 124(a)-(d).) However, although pled as four different schemes, the acts alleged in fact constitute only a single fraudulent scheme against the plaintiffs. The misrepresentation of Class" }, { "docid": "2417272", "title": "", "text": "9(b). Bresson v. Thomson McKinnon Securities, Inc., 641 F.Supp. 338, [1986-87 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 92,855 at H 94,158 (S.D.N.Y.1986). To find violations of the mail and wire fraud statutes, Lou must show “(1) participation in a scheme to defraud and (2) knowing use of the interstate mails or interstate wires to further the scheme.” Connors v. Lexington Ins. Co., 666 F.Supp. 434, 450 (E.D.N.Y.1987) (citing United States v. Gelb, 700 F.2d 875, 879 (2d Cir.1983), cert. denied, 464 U.S. 853, 104 S.Ct. 167, 78 L.Ed.2d 152 (1983)). It is the use of mail or interstate wire communications in furtherance of the scheme — not the fraudulent scheme itself — that is the predicate act. United States v. States, 488 F.2d 761, 767 (8th Cir.1973), cert. denied, 417 U.S. 909, 94 S.Ct. 2605, 41 L.Ed.2d 212 (1974). In finding violations of the mail and wire fraud statutes, the courts have interpreted broadly the meaning and scope of “scheme to defraud.” In Durland v. United States, 161 U.S. 306, 313, 16 S.Ct. 508, 511, 40 L.Ed. 709 (1896), the Supreme Court ruled that a scheme or artifice to defraud is not limited to common law conception of fraud and false pretense, and that the mail-fraud statute condemns any conceivable kind of scheme to defraud in which the mails are employed. United States v. Pick, 724 F.2d 297, 300 (2d Cir.1983). The Second Circuit recently confirmed that each separate use of the mail — or implicitly each separate case of interstate wire communication — in furtherance of a scheme constitutes a separate predicate offense. Beauford v. Helmsley, 865 F.2d 1386, 1392 (2d Cir.1989) (en banc) (citing Badders v. United States, 240 U.S. 391, 394, 36 S.Ct. 367, 368, 60 L.Ed. 706 (1916), vacated, — U.S.-, 109 S.Ct. 3236, 106 L.Ed.2d 584, adhered to upon further consideration, 893 F.2d 1433 (2d Cir.1989) (order), cert. denied, — U.S.-, 110 S.Ct. 539, 107 L.Ed.2d 537 (1989). As long as the mailing or wire communications are for the purpose of executing the scheme, or “allegedly had the same goal,” Beauford, at 1392, liability will attach" }, { "docid": "12550681", "title": "", "text": "and other investors would rely thereon in purchasing the Sacramento Associates Limited Partnership interests,” see e.g., Alberti Comp. 11314, does not constitute an adequate pleading of scienter. The Alberti complaint fails to specify how or when Abrams became aware of facts that made the Offering Materials misleading. Because Abrams’s scienter has not been properly pleaded, the 10(b) claim cannot be asserted as a predicate act under RICO. Mail and Wire Fraud Claim To establish that a defendant has committed an indictable offense under the federal mail and wire fraud statutes, a plaintiff must allege and prove “(1) the existence of a scheme to defraud, and (2) the use of the mails or interstate wires in furtherance of the fraudulent scheme.” In re Gas Reclamation, Inc., Secs. Litig., 659 F.Supp. 493, 512 (S.D.N.Y.1987) (citations omitted). Mail and wire fraud must be pleaded in conformity with Rule 9(b). Rich-Taubman Assocs. v. Stamford Restaurant Operating Co., 587 F.Supp. 875, 878 (S.D.N.Y.1984). Because the mail and wire fraud claims premised on inadequately pleaded securities fraud violations must be dismissed, see Bresson v. Thomson McKinnon Secs., Inc., 641 F.Supp. 338, 348 (S.D.N.Y.1986), the Alberti plaintiffs claims of mail fraud based on misrepresentations in the PPM cannot constitute a predicate act here. The Alberti plaintiffs also claim, however, that Abrams and other defendants committed mail fraud by concealing the status of Sacramento Associates and the Butano Property after obtaining the Alberti plaintiffs’ investments in the limited partnership, Alberti Comp. ¶¶258-61, 288, and by assisting Trupin in negotiating and implementing the transfer of control over Sacramento Associates to Gary Rogers (“Rogers”) in 1986. Alberti Comp. 1I1[ 246-52, 288. This claim fails to satisfy Rule 9(b), as set forth below. First, although the Alberti plaintiffs list a number of letters that allegedly comprise “indictable acts of mail fraud” designed to conceal the status of Sacramento Associates and the Butano Property, they do not even purport that Abrams himself was responsible for any of them. Alberti Comp. If 259 (enumerating letters from Rothschild Registry, Rothschild Reserve, and Marvin Schaffer). As discussed above, even though Abrams was in-house counsel to" }, { "docid": "11466863", "title": "", "text": "not specify what bank did during negotiations, and did not allege that bank participated in drafting documents, for “[t]he fact that one is an insider of an organization does not necessarily make one privy to every scheme hatched there.”). Therefore, Blaikie plaintiffs have failed to plead scienter adequately, and their fraud claim against the Ferber defendants, count 7, must be dismissed. The RICO Claim As in Morin, plaintiffs have failed to plead adequately that the Ferber defendants committed two RICO predicate acts, and thus their RICO claims, counts 3 and 6, must be dismissed. The only apparent predicate crimes alleged against the Ferber defendants are mail fraud and wire fraud pursuant to 18 U.S.C. § 1341 and § 1343, respectively. In order to establish that a defendant has committed an indictable offense under the federal mail and wire fraud statutes, a plaintiff must allege (and prove) “(1) the existence of a scheme to defraud, and (2) the use of the mails or interstate wires in furtherance of the fraudulent scheme.” In re Gas Reclama tion, Inc., Securities Litigation, 659 F.Supp. 493, 512 (S.D.N.Y.1987) (citation omitted). It is well-settled that where, as here, the predicate crimes of a RICO claim sound in fraud, the pleading of those predicate acts must satisfy the strictures of Fed.R.Civ.Proc. 9(b). See The Limited, Inc. v. McCrory Corp., 645 F.Supp. 1038, 1041 (S.D.N.Y.1986); Equitable Life Assurance Society v. Alexander Grant & Co., 627 F.Supp. 1023, 1028 (S.D.N.Y.1985). Rule 9(b), applied in this context, requires that specification of the time, place, speaker and content of the alleged misrepresen tations, see Luce v. Edelstein, 802 F.2d 49, 54 (2d Cir.1986); Conan Properties, Inc. v. Mattel, Inc., 619 F.Supp. 1167, 1172 (S.D.N.Y.1985), a sufficient showing of fraudulent intent, Beck v. Manufacturers Hanover Trust Co., 820 F.2d 46, 49-51 (2d Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988); Anitora Travel, Inc. v. Lapian, 677 F.Supp. 209, 214 (S.D.N.Y.1988), and the specifics of the use of the mails and wires. Frota v. Prudential-Bache Securities, Inc., 639 F.Supp. 1186, 1192 (S.D.N.Y.1986). Therefore, “bare allegations of ‘conspiracy’ ..." }, { "docid": "10069856", "title": "", "text": "particularity.” See Limited, Inc. v. McCrory Corp., 645 F.Supp. 1038, 1041, 1047 (S.D.N.Y.1986). “The ‘circumstances’ constituting fraud means ‘matters such as time [sic], place, and contents of the false representations, as well as the identity of the person making the misrepresentation.’ ” Id. at 1041 (quoting Robertson v. National Basketball Ass’n, 67 F.R.D. 691, 697 (S.D.N.Y.1975)). The securities fraud claim indisputably is pleaded sufficiently. Plaintiffs claim the offering memorandum for the limited partnership interests fraudulently stated the cost of the film to be $650,000.00 in cash and $2,500,000.00 in a non-recourse note. Defendant Gordon allegedly failed to tell plaintiffs that the film was being purchased from a “dummy” corporation he controlled, which had purchased the film at a cost of $400,000.00 in cash and $2,500,-000.00 in a non-recourse note. Thus, the amended complaint “adequately details the nature and essential factual elements of the alleged fraud so that it is possible for defendants to determine from plaintiff[s’] allegations the general time, place, and contents of these alleged fraudulent omissions.” Limited, Inc., 645 F.Supp. at 1042. The mail fraud claim rests on allegations that a letter mailed on or after September 17, 1975 contained fraudulent assertions of fact regarding the use of proceeds from the offering for the limited partnership, the inclusion in the closing documents of sale to Arlington of a certification and budget reflecting the cost of the movie, and evaluations or appraisals of the value of the film. It too indisputably is pleaded sufficiently to place Gordon on notice of the claim against him. The elements of an indictable offense under the federal mail fraud statute are “(1) the existence of a scheme to defraud, and (2) the use of the mails ... in furtherance of the fraudulent scheme.” In re Gas Reclamation, Inc. Sec. Litig., 659 F.Supp. 493, 512 (S.D.N.Y. 1987) (quoting Tryco Trucking Co. v. Belk Stores Servs., 634 F.Supp. 1327, 1333 (W.D.N.C.1986)). Plaintiffs have pleaded a scheme to defraud (fraudulent sales of limited partnership interests) and use of the mails to further the scheme (the September 17 letter). Gordon argues as a second point that the" }, { "docid": "18996346", "title": "", "text": "accomplished through the “use of the mail and/or wire services.” The Trustee also alleges generally that “the mails were used in connection with and in furtherance of other aspects of the ... enterprise_” General allegations as these, however, are insufficient to meet the particularity requirements of Fed.R.Civ.P. 9(b). See First Federal, supra, 629 F.Supp. at 444; Gregoris Motors, supra 630 F.Supp. at 913. Nor does the Amended Complaint pass muster with respect to the allegations of wire fraud. To plead an indictable offense under the wire fraud statute, one must allege the existence of (or intention to devise) a scheme or artifice to defraud and the use of interstate wires in furtherance of that fraudulent scheme. 18 U.S.C. § 1343; Tryco Trucking Co. v. Belk Stores Services, 634 F.Supp. 1327, 1333 (W.D.N.C.1986); In re Gas Reclamation, Inc. Securities Litigation, supra, 659 F.Supp. at 512. A scheme to defraud is a scheme designed “to deprive one of property through fraudulent or deceptive means, such as material misrepresentation (or) concealment....” Id. at 512 quoting Tryco Trucking Co., 634 F.Supp. at 1333. The Amended Complaint leaves us very much in the dark as to what constituted the scheme to defraud. Neither the fraudulent or deceptive means nor the false statements are identified, nor are we told what about them was false and misleading. See Conan Properties, Inc. v. Mattel, Inc., 619 F.Supp. 1167, 1172-73 (S.D.N.Y.1985). Although the allegations taken as a whole charge BONY with misdoings, we cannot say from the Amended Complaint that those alleged misdoings plead wire fraud. The same is true with respect to allegations which would be sufficient to indict BONY for bankruptcy fraud. 18 U.S.C. § 152 sets out various instances of bankruptcy fraud which, like other RICO violations predicated in fraud, must be pleaded with particularity. Gregoris Motors, 630 F.Supp. at 912; see, e.g., Bankers Trust v. Feldesman, 648 F.Supp. 17, 23 (S.D.N.Y.1986). Here, the complaint paints a picture of post-petition transfers facilitated by one or more of BONY’S employees. But the pleading of those facts together with general language tracking the RICO statute does not adequately" }, { "docid": "6544159", "title": "", "text": "not as to King, the court may now consider whether the Complaint also alleges the predicate acts of mail and wire fraud in conformity with Fed.R.Civ.P. 9(b). The elements of mail fraud, 18 U.S.C. § 1341 (1982), are participation in a scheme to defraud and knowing use of the mails to further that scheme. See United States v. Gelb, 700 F.2d 875, 879 (2d Cir.), cert. denied, 464 U.S. 853, 104 S.Ct. 167, 78 L.Ed.2d 152 (1983). The elements of wire fraud, 18 U.S.C. § 1343 (1982), include participation in a scheme to defraud and knowing use of interstate communications to further that scheme. See United States v. Corey, 566 F.2d 429, 430 n. 2 (2d Cir.1977). With respect to mail fraud, the Complaint alleges on information and belief that the “defendants or some of them” mailed false Offering Memoranda, false financial reports, and false transaction reports to investors in the Partnerships. The Complaint is vague, however, with respect to the financial and transaction reports. For example, although plaintiff alleges on information and belief that such reports were sent to all investors, she never states on her own knowledge that she ever received them. She also fails to allege the timing of these reports and their content. See Complaint ¶¶ 23, 25, 32. Although the Complaint does not contain sufficient allegations of mail fraud in connection with the financial and transaction reports, it does set forth the time and place of the mailing of Offering Memoranda. See Complaint ¶¶ 15, 20, 21, 32. Accordingly, plaintiff's allegations of mail fraud based on the Offering Memoranda meet the specificity requirement of Fed.R.Civ.P. 9(b). The mail fraud statute also requires a showing of scienter. See Beck, 820 F.2d at 49. As noted earlier, Fed.R. Civ.P. 9(b) allows a general averment of knowledge if that averment is accompanied by a factual statement of the basis for this assertion. See id. at 50. For the reasons stated above regarding Section 10(b), the court finds that the Complaint establishes motive and opportunity on the part of defendants Prudential-Bache and Condron giving rise to a factual basis" }, { "docid": "16508157", "title": "", "text": "comply with the specificity requirements of Rule 9(b). The court disagrees. It is well settled that Rule 9(b) applies to each of the predicate acts alleged in the • plaintiffs’ RICO claims. See Beck v. Manufacturers Hanover Trust Co., 820 F.2d 46, 49 (2d Cir.1987); Gruber v. Prudential-Bache Sec., Inc., 679 F.Supp. at 174; O & G Carriers, Inc. v. Smith, 799 F.Supp. 1528, 1540 (S.D.N.Y.1992) (“All elements of a RICO claim must comply with Rule 9(b).”). In evaluating the sufficiency of the RICO allegations, this court is mindful of the Supreme Court’s admonition that RICO must be construed liberally to effectuate its remedial purpose. See Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. at 497-98, 105 S.Ct. at 3285-86. Accordingly, the court declines to apply Rule 9(b) in an overly mechanistic way to a complaint which is, in essence, sufficiently particular. a) Violation of Section 10(b). As the court has already determined, the plaintiffs’ section 10(b) claims are sufficiently particular. b) Violation of Section 12. The court need not reach the question of whether the plaintiffs’ section 12 claims satisfy the pleading requirements of Rule 9(b) because the plaintiffs have sufficiently alleged at least two other predicate acts. The court notes, however, that it is indeed difficult to determine exactly which violations of section 12 form the basis for the plaintiffs’ RICO claims. See, e.g., Gold Complaint at ¶ 218. e) Mail and Wire Fraud. To state a claim for mail fraud or wire fraud, the complaint must allege that the defendant (1) participated in a scheme to defraud, and (2) knowingly used interstate mails or wire communications to further that scheme. United States v. Gelb, 700 F.2d 875, 879 (2d Cir.) (mail fraud), cert. denied, 464 U.S. 853, 104 S.Ct. 167, 78 L.Ed.2d 152 (1983). In the instant case, the court has already determined that the plaintiffs’ allegations concerning the defendants’ participation in the scheme are sufficiently particular. While the plaintiffs’ allegations that the defendants used the mails and wire communications to further the fraudulent scheme are admittedly less precise, they are still adequate for purposes of Rule" } ]

[ { "docid": "18801700", "title": "", "text": "OPINION FRANKEL, District Judge. The court is called upon to decide whether the plaintiff, GAF Corporation, is free to turn over to the Government papers of Eastman Kodak Company obtained through discovery in this private antitrust suit. The Government’s interest, pressed by the Antitrust Division of the Department of Justice, is in use of these materials for potential “law enforcement” purposes not clearly specified or specifiable in advance. The setting is a substantial case begun (with others by two different plaintiffs) over three years ago and now approaching trial. There has been, expectably, an enormous amount of discovery. Defendant has produced more than 400,000 documents. Some 80,000 were given initially subject to an agreed order of confidentiality providing that documents designated as confidential, as well as summaries and excerpts thereof, were to be used “solely for the purpose of conducting this litigation,” with review of the documents limited, in essence, to attorneys of record, their employees, and certain consultants specially retained. In the course of time, the seal of confidentiality has been removed from a large portion of the papers so that all but some 4,000 documents have been declassified. More broadly, but no less importantly, the parties have agreed, through discussions among counsel, that all documents produced in discovery, whether or not confidential, were to be used “solely for the purpose of this litigation.” On January 29, 1976, counsel for GAF came to court with opposing counsel for an informal meeting to discuss the issue now treated. Counsel reported that there had been consultations on behalf of GAF with representatives of the Antitrust Division of the United States Department of Justice. The court was informed that some of the documents obtained in discovery from Kodak were believed useful to the Government in the sense that GAF deemed them indicative of antitrust misconduct. GAF’s counsel desires to deliver, and the Antitrust Division desires to receive, these documents. Wisely sensing the donation might be open to question, counsel for GAF solicited the court’s permission. Kodak resisted, seeking in effect a protective order of prohibition. Expressing tentative doubts as to the course" } ]

[ { "docid": "22881937", "title": "", "text": "undermine their justified expectations. Plaintiffs cannot now attempt to undo what they have willingly wrought; having made their bed, they must sleep in it. We note that Judge Frankel reached a similar conclusion in GAF Corp. v. Eastman Kodak Co., 415 F.Supp. 129 (S.D.N.Y.1976). In that antitrust case, the parties produced tens of thousands of documents under an agreed order of confidentiality, providing that all documents produced in discovery would be used solely for the purpose of that litigation. GAF subsequently sought permission to turn fifty-two documents over to the Antitrust Division of the Department of Justice. Judge Frankel denied their request, concluding that the parties’ “shared and explicit assumption” that discovery in the case was for purposes of that case alone went “a long way toward denial of GAF’s request without more.” Id. at 132. Inasmuch as there is a paucity of authority on this point, we rest our decision essentially upon our own analysis. We note, however, that our conclusion is supported by the pithy and forceful opinion of Judge Russell Smith in In Re Coordinated Pretrial Proceedings in Western Liquid Asphalt Cases, 18 F.R.Serv.2d 1251 (N.D.Cal.1974). Although we deny plaintiffs’ motion for wholesale declassification as such, we will treat the motion as one seeking declassification of the critical categories of documents in the case. The task of deciding whether certain categories of documents should be released requires us next to consider the matter of the common law access rights to judicial records. III. Common Law Access Rights to Judicial Records A. The General Nature of the Right It is beyond dispute that in this country judicial proceedings and records are presumptively open to the public. The public’s right of access was recognized at common law before the Constitution was adopted. United States v. Criden, 648 F.2d 814, 819 (3d Cir. 1981). Judicial openness has two components: access to trials themselves, which for criminal trials the Supreme Court has found is protected by the First and Fourteenth Amendments, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); and access to judicial records" }, { "docid": "22881935", "title": "", "text": "seeking disclosure. Cf. Iowa Beef Processors, Inc. v. Bagley, 601 F.2d 949 (8th Cir.), cert. denied sub nom. Iowa Beef Processors, Inc. v. Smith, 441 U.S. 907, 99 S.Ct. 1997, 60 L.Ed.2d 376 (1979) (before dissolving longstanding protective order, party seeking dissolution bears burden of showing that intervening circumstances have removed potential prejudice from disclosure that protective order was initially intended to prevent). In terms of complex case management, we also believe that wholesale declassification is a poor, inappropriate, and unfair tool, not only with respect to the interests of the litigants, but also with respect to the interests of third parties who are frequently drawn into the vortex. It is common that, in response to a subpoena to attend a deposition and produce related documents, and in reliance upon an umbrella confidentiality order, third parties divulge sensitive commercial information without asserting their right to be protected by a court in their “home jurisdiction.” Wholesale declassification might unfairly prejudice the rights of such third parties because they may not be in a position to contest the wholesale declassification motion in which their documents are implicated. This prejudice may result because they are removed from the controversy or difficult to locate years after their submission of documents or because they lack the resources or will to oppose an entire motion covering all the discovery materials in a case to which they are not a party. Lastly, we believe that plaintiffs have effectively waived their right to seek wholesale declassification. The parties voluntarily entered into PTO 35 in order to facilitate discovery. See note 10 supra. They agreed upon a method by which to challenge confidentiality designations. They also agreed that the information produced would be used only by “qualified” individuals and would be used only in the preparation for trial “and shall not be used for any other purpose whatsoever.” Plaintiffs are now attempting to abrogate that agreement. PTO 35 did not contemplate such an unwieldy approach. Rather, PTO 35 instituted a more particularized approach for objections. All parties have relied on these provisions in producing documents, and wholesale declassification would" }, { "docid": "22881933", "title": "", "text": "the need for confidentiality of all the protected documents, defendants must now meet their burden of showing good cause for the confidential designation of all the documents just as if plaintiffs had challenged the classification of a single document. We believe, however, that the proposed procedure would effect an unintended metamorphosis of PTO 35, for there is a qualitative difference between sustaining the confidentiality of a single document at the time of its designation and sustaining the confidentiality of hundreds of thousands of documents en masse years after they have been produced and given a confidentiality designation. Wholesale declassification cannot meaningfully be attained unless the necessary determinations can be made by some sweeping rule of thumb, e.g., documents over “x” years of age are conclusively ineligible for continued protection. But, as we have explained, rules of thumb are particularly inappropriate in this context. We conclude that wholesale declassification cannot rationally be obtained without reviewing each of the countless separate documents or at least the many discrete categories which constitute the mass of protected documents. Wholesale declassification of millions of pages of documents, years after they have been produced, would require a tremendous concentration of judicial and litigants’ resources. It would be virtually impossible for us to consider declassification document-by-document at this juncture. PTO 35 provided a procedure for contemporaneous objection to confidentiality designations which was readily available to plaintiffs, but which they chose not to exploit. Although PTO 35 provides that the failure of any party to challenge a confidentiality designation contemporaneously shall not be deemed a waiver of its right to challenge the propriety of such designation at any time thereafter, this does not mean that a party may sit on its hands while the mountain of discovery materials grows and then attempt to challenge the protection of such material with the same ease with which it could have raised an objection contemporaneously. A party seeking wholesale declassification must first attempt to justify the investment of judicial and private resources demanded by such an exercise. Thus, to this extent, wholesale declassification shifts part of the burden to the party" }, { "docid": "22881987", "title": "", "text": "damaging disclosure of commercial information about defendants. In view of the liberal discovery allowed by the federal rules, we think that this risk is also serious. We conclude that the likelihood of harm under the circumstances of this case clearly outweighs plaintiffs’ interest in communicating information gleaned only from discovery materials. Next we must ask whether a more narrowly drawn order or a less restrictive means than a protective order would effectively meet these concerns. We think it clear that they would not. First, no means other than sealing the documents produced in discovery could protect defendants’ confidential commercial information. Second, PTO 35 is reasonably narrowly drawn. Although it is an umbrella order that permits the parties to designate documents as confidential, nothing other than a blanket order can meet the manageability concerns present in a complex case. Cf. In re San Juan Paper Co., supra, Slip Op. at 117; In re Halkin, supra, 598 F.2d at 196 n.47. The order incorporates an appeals process for challenges to such designations, and by the terms of the order the burden of proving the need for confidentiality remains, as we think the Constitution requires, on the party seeking protection. In addition, the only persons restrained by the order are qualified persons, executives, and witnesses, as defined in PTO 35. We have already noted that the only communication restrained is that of information contained in documents produced under seal. Finally, the foregoing discussion makes clear why PTO 35 is an effective means to prevent unwarranted exposure of defendants’ commercial information and abuse of the court’s processes, and to insure that discovery would be orderly and fair. We hold that the First Amendment does not require vacatur of PTO 35, nor does it require disclosure of more categories of documents than do the public’s access rights. V. Conclusion Our analysis of the facts and the applicable law has led us to the conclusion that we must deny plaintiffs’ motions for wholesale declassification and for vacatur of PTO 35; that we must declassify the DSS’s and the text of the FPS, along with several of" }, { "docid": "9913116", "title": "", "text": "U.S.C. § 1311 et seq., and their effect upon a protective order in the original private suit that restricts the Government’s access to the product of that litigation’s discovery. On January 29, 1976, before the enactment of the Amendments mentioned, GAF Corporation, plaintiff in an antitrust action brought against Kodak in the Southern District of New York (Hon. Marvin E. Frankel), sought permission from the trial judge to transmit to the Justice Department some fifty-two documents that had been secured through discovery, together with a memorandum of analysis of the documents. Al though only two of the documents remained classified under a prior order, then Judge Frankel, on May 18, forbade GAF to turn over any of the fifty-two documents (and by implication the memorandum based upon them). GAF Corp. v. Eastman Kodak Co., 415 F.Supp. 129. The District Judge reasoned that the initial discovery process had been aided by a cooperative relinquishment on Kodak’s part pursuant to an explicit understanding that discovery was being given solely for use in the case. It is interesting to note, however, that there was no clearcut understanding, as my dissenting brother Mulligan seems to assume, that the parties deliberately excluded the Government in their “explicit agreement.” For Judge Frankel put it this way: There is no need to conjecture whether either side construed or considered this understanding with particular reference to the Government as a prospective recipient of discovered papers. 415 F.Supp. at 131. The Judge declared that the Government’s interest was “in use of these materials for potential ‘law enforcement’ purposes not clearly specified or specifiable in advance.” 415 F.Supp. at 130. Moreover, recognizing that the real value of GAF’s “gift” to the Government lay in the legal labors expended in the selection and analysis of relevant documents, Judge Frankel expressed concern about the potential for oppression in an alliance between private and Government resources directed against Kodak, particularly in “the use of private discovery as a possible supplement to federal grand jury proceedings.” 415 F.Supp. at 133. Almost on the heels of this decision, but without taking note of it, Congress" }, { "docid": "22881996", "title": "", "text": "Hughes, counsel for Matsushita, stated on the basis of his personal knowledge that the last 100,000 documents produced in discovery by Zenith were produced on paper preprinted with a legend “confidential per court order.” PTO 292, at 247 (Sept. 3, 1980) (Transcript of Hearing on Declassification Motion). These documents obviously had not been pre-reviewed. Plaintiffs have not disputed these assertions. . The motion as originally filed sought an Order striking defendants’ sweeping designations of confidentiality of all documents, pleadings and materials which were prepared or refer or relate to the period prior to September 21, 1974, the date of the filing of the Complaint by Zenith Radio Corporation. Plaintiffs’ later submissions appear to abandon the September 21, 1974, line of demarcation. The motion to vacate PTO 35 was filed in May, 1979. . Judge Higginbotham did suggest a method for dealing with the problem. See infra pages 877-878. . Our published opinions in this case, see supra note 1, chronicle the progress of the litigation. . The designation “qualified executive” resulted from an agreement executed by the parties on May 9, 1978, allowing certain executives of the parties to have access to certain documents and information theretofore produced in the litigation for purposes of trial preparation. The agreement listed twelve Zenith qualified executives who were granted access to all documents and information theretofore submitted by defendants in discovery except for certain prescribed price-cost-profit and technical data. The principal limitations related to: (1) access to documents which described defendants’ suggested or published retail prices after September 20, 1974; (2) internal financial statements and tax returns; (3) defendants’ United States Treasury Department submissions; and (4) certain cost and profit data. The agreement provided that the confidential information could be used only in connection with trial preparation; that it was without prejudice to the positions of any party on the confidentiality issue in general; and that the objections under the agreement were reciprocal. The agreement also permitted the Zenith executives to examine Zenith’s preliminary pretrial memorandum, the-precursor of the FPS and our initial effort to secure definition of the issues. Since this agreement" }, { "docid": "22881882", "title": "", "text": "Second, the hearing provided the forum for a pretrial ruling on the question whether the plaintiffs had come forward with a fair preponderance of evidence aliunde of the existence of a conspiracy among the various defendants to permit the introduction of co-conspirator declarations. The third and final category of documents sought to be declassified consists of the millions of pages of documents produced in discovery. This category includes the documents contained in the document depository created pursuant to PTO 219 to house what the parties (mainly the plaintiffs) asserted to be the more important documents in the case. No one has counted the number of documents in the depository, but we estimate it to be over 100,000. In light of the quantity of documents produced in discovery, the potential sweep of the wholesale declassification motion is enormous. Nor is much discussion required to demonstrate that the burden of reviewing each document individually in order to determine whether its continuing confidential status is justified would be almost impossible to meet. PTO 35 was entered by our immediate predecessor in this case, Judge A. Leon Higginbotham, Jr., on December 19, 1975, slightly more than one year after the filing of the Zenith complaint. That order supplanted a more restrictive confidentiality order that had been entered by Judge Shaw in the District of New Jersey at the outset of the National Union Electronic Corporation (“NUE”) litigation. PTO 35 states that many documents produced for discovery relate to trade secrets or other confidential research, development or commer cial information, as those terms have been defined pursuant to Rule 26(c)(7) of the Federal Rules of Civil Procedure. The order defines “confidential information” as any information that is designated “confidential” at the time of its disclosure by the disclosing party. The order provides that confidential information shall be used only in the preparation for trial and/or trial of these actions, and not for any other purpose whatsoever. PTO 35 further provides that confidential information may be disclosed only to persons denominated as “qualified persons,” and provides specific procedures by which additional “qualified persons” may be named." }, { "docid": "15263111", "title": "", "text": "into by Nathan, DOD, RMI and TMCA do not immunize the Nathan report or other materials from discovery. The principal cases relied on by objectants to support this contention, e. g., Martindell v. International Telephone & Telegraph Corp., 594 F.2d 291 (2d Cir. 1979), and GAF Corp. v. Eastman Kodak Co., 415 F.Supp. 129 (S.D.N.Y.1976), involve significantly different circumstances. In Martindell the district court denied the government access to deposition transcripts of witnesses who had testified pursuant to a stipulation of confidentiality “so ordered” by the court under Rule 26(c), the request having been made after the case had been settled. In affirming that denial, the Court of Appeals very plainly rested its decision on the “vital function” the protective order had played in the original litigation, “to ‘secure the just, speedy, and inexpensive determination’ of civil disputes, Rule 1, F.R. Civ.P., by encouraging full disclosure of all evidence that might conceivably be relevant.” 594 F.2d at 295. The court commented that “[ujnless a valid Rule 26(c) protective order is to be fully and fairly enforceable, witnesses relying upon such orders will be inhibited from giving essential testimony in civil litigation.” Id. In GAF Corp. v. Eastman Kodak Co., supra, Judge Frankel denied disclosure of documents to the Antitrust Division. His reason for doing so, however, was not the existence of an agreed order of confidentiality, but rather the agreement of the parties “through discussions among counsel, that all documents produced in discovery, whether or not confidential, were to be used ‘solely for the purpose of [the] litigation.’ ” 415 F.Supp. at 130. But this cannot help objectants here since such an understanding was plainly tantamount to a stipulated Rule 26(c) protective order entered in the course of litigation. See id., 415 F.Supp. at 131-32. In short, Martindell and GAF Corp. v. Eastman Kodak cannot fairly be extended beyond their litigation contexts to permit parties to contract privately for the confidentiality of documents, and foreclose oth ers from obtaining, in the course of litigation, materials that are relevant to their efforts to vindicate a legal position. To hold otherwise would" }, { "docid": "22881899", "title": "", "text": "Defendants’ response has been to object to wholesale declassification and to point out in general how declassification of documents containing technical, financial, and marketing information would be harmful to their interests, even where the data is as much as ten years old. The vast bulk of defendants’ response has been by means of defense counsels’ oral and written submissions. In 1977, however, while the matter was pending before Judge Higginbotham, the Hitachi defendants filed a lengthy telex from a Hitachi Corporate Secretary, Mr. Miyamoto, which Judge Higginbotham accepted in lieu of an affidavit. The telex explained, in general terms, how declassification would be harmful to Hitachi’s interests. A similar submission in affidavit form was made at that time by Mr. Kenji Yamagishi on behalf of Matsushita. The judges who have presided over this ease have had a number of occasions to act upon confidentiality matters. Some of these occasions arose when the parties submitted stipulations that relief from PTO 35 be granted in response to a government agency demand. There were also several contested confidentiality motions. We annotate these instances briefly to amplify the background of the treatment of confidentiality matters in this litigation and to contrast them with the parties’ failure to challenge specific documents. Judge Higginbotham’s major confidentiality problems related to whether the fruits of discovery, en masse, could be turned over to the United States International Trade Commission, and whether documents produced to the ITC by a third party could be subpoenaed by parties in this action. Shortly after the assignment of the case to our docket, we executed a consent order permitting the United States Department of Justice to examine selected fruits of discovery. We also had occasion to deal with a motion to depose Bernard Nash of the Washington law firm of Blum, Nash and Parker, a lawyer or lobbyist for Zenith, and to obtain access to his law firm’s records on the theory that Zenith had breached PTO 35 by providing Nash with protected documents which Nash in turn allegedly furnished to the United States Senate Antitrust and Monopoly Subcommittee. C. General Description of" }, { "docid": "22881932", "title": "", "text": "decision may be reversed and plaintiffs’ case may yet go to trial. Plaintiffs’ motion for vacatur will not be granted on the ground that PTO 35 exceeds our authority under Rule 26(c), for we have found the contrary to be true. Still unanswered is the question whether wholesale declassification per se is proper in this case. This issue raises issues distinct from, albeit related to the Rule 26(c) determination. To those issues we now turn. C. The Propriety of Wholesale Declassification In this section we examine the implications of and problems posed by plaintiffs’ motion for wholesale declassification. The phenomenon of declassifying as a group all of the documents protected by an umbrella protective order raises special problems that we believe must be addressed separately from the other issues raised in this case. The underlying assumption of plaintiffs’ motion is that the usual procedures under PTO 35 for classifying and challenging the classification of documents may be translated intact into the context of wholesale declassification. In other words, plaintiffs contend that because they have challenged the need for confidentiality of all the protected documents, defendants must now meet their burden of showing good cause for the confidential designation of all the documents just as if plaintiffs had challenged the classification of a single document. We believe, however, that the proposed procedure would effect an unintended metamorphosis of PTO 35, for there is a qualitative difference between sustaining the confidentiality of a single document at the time of its designation and sustaining the confidentiality of hundreds of thousands of documents en masse years after they have been produced and given a confidentiality designation. Wholesale declassification cannot meaningfully be attained unless the necessary determinations can be made by some sweeping rule of thumb, e.g., documents over “x” years of age are conclusively ineligible for continued protection. But, as we have explained, rules of thumb are particularly inappropriate in this context. We conclude that wholesale declassification cannot rationally be obtained without reviewing each of the countless separate documents or at least the many discrete categories which constitute the mass of protected documents. Wholesale" }, { "docid": "23380024", "title": "", "text": "these three categories. Report for the United States concerning Magistrate’s Order No. 2, filed June 7, 1978. Moreover, it has actively pursued its request for production with respect to documents produced in only two of the other court proceedings. See note 91, infra. Thus, the question before the Court is whether defendants should be required in this proceeding to produce to plaintiff here copies of documents previously produced and selected for use in the lawsuits brought against defendants by Litton Systems, Inc. and MCI Communications Corp. in the Southern District of New York and the Northern District of Illinois, respectively. Defendants initially contend that the order constitutes an abuse of the discovery process, relying principally on GAF Corporation v. Eastman Kodak Company, 415 F.Supp. 129 (S.D.N.Y.1976). In the course of that antitrust case Eastman Kodak produced a great many documents, several thousand of which were produced- under a seal of confidentiality, and all of which — by agreement of the parties — were to be used “solely for the purposes of [that] litigation.” Approximately three years after the lawsuit was begun, the Antitrust Division of the Department of Justice requested from GAF certain documents that GAF had received from Eastman Kodak by means of this discovery procedure. GAF then requested permission from the court to deliver the documents. Judge Marvin Frankel denied that request and entered a protective order prohibiting the transfer. He noted that although there was little precedent on the issue, the circumstances of the case, including, inter alia, the understanding between the parties, and the lack of assurances that the Department of Justice was not seeking the documents for the purpose of bringing a criminal action against Eastman Kodak, warranted the prohibition. While such a result may well have been appropriate in the context of the GAF circumstances, it is by no means dictated here. In GAF, the government was not engaging in the discovery process as a party to that or any other litigation involving either GAF or Eastman Kodak. Quite the contrary, it sought the materials for investigatory purposes, presumably in anticipation of initiating a" }, { "docid": "15263112", "title": "", "text": "enforceable, witnesses relying upon such orders will be inhibited from giving essential testimony in civil litigation.” Id. In GAF Corp. v. Eastman Kodak Co., supra, Judge Frankel denied disclosure of documents to the Antitrust Division. His reason for doing so, however, was not the existence of an agreed order of confidentiality, but rather the agreement of the parties “through discussions among counsel, that all documents produced in discovery, whether or not confidential, were to be used ‘solely for the purpose of [the] litigation.’ ” 415 F.Supp. at 130. But this cannot help objectants here since such an understanding was plainly tantamount to a stipulated Rule 26(c) protective order entered in the course of litigation. See id., 415 F.Supp. at 131-32. In short, Martindell and GAF Corp. v. Eastman Kodak cannot fairly be extended beyond their litigation contexts to permit parties to contract privately for the confidentiality of documents, and foreclose oth ers from obtaining, in the course of litigation, materials that are relevant to their efforts to vindicate a legal position. To hold otherwise would clearly not serve the truth-seeking function of discovery in federal litigation. Turning next to the closer question whether the Nathan report is protected by the immunity from discovery accorded attorney’s work product, we conclude that it is not. Grumman argues that the Nathan report is not entitled to work product protection because (1) it was not prepared in an adversarial context, but by Nathan, as a “neutral fact-finder”; (2) DOD could never use the report for litigation purposes against RMI or TMCA, but only for settlement, while nothing restricted those defendants from using the report as they wished; and (3) the report was disclosed to RMI and TMCA, *who were DOD’s acknowledged “adversaries.” To uphold their claim, objectants urge that the customary immunity for materials prepared “with an eye to litigation,” Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 394, 91 L.Ed. 451 (1947), embraces documents prepared in efforts to settle claims in order to forestall litigation. DOD, asserting that litigation “was (and is) a very real contingency” (DOD Memorandum at 5), contends" }, { "docid": "22881988", "title": "", "text": "the order the burden of proving the need for confidentiality remains, as we think the Constitution requires, on the party seeking protection. In addition, the only persons restrained by the order are qualified persons, executives, and witnesses, as defined in PTO 35. We have already noted that the only communication restrained is that of information contained in documents produced under seal. Finally, the foregoing discussion makes clear why PTO 35 is an effective means to prevent unwarranted exposure of defendants’ commercial information and abuse of the court’s processes, and to insure that discovery would be orderly and fair. We hold that the First Amendment does not require vacatur of PTO 35, nor does it require disclosure of more categories of documents than do the public’s access rights. V. Conclusion Our analysis of the facts and the applicable law has led us to the conclusion that we must deny plaintiffs’ motions for wholesale declassification and for vacatur of PTO 35; that we must declassify the DSS’s and the text of the FPS, along with several of its appendices; and that we must refuse to declassify all other materials that were designated “confidential” under the aegis of PTO 35 and either filed of record or accumulated in discovery. Plaintiffs’ counsel have informed us that a twenty-five volume appendix to plaintiffs’ appellate brief is being filed with the Clerk of the Third Circuit Court of Appeals. We believe that the vast bulk of plaintiffs’ appendix filings consist of materials that are declassified; by virtue of the order accompanying this opinion. If that judgment is correct, many thousands of documents which have never been .on the public record will be exposed at the moment that the Clerk of the Court of Appeals completes the docketing process. Defendants and third parties who have submitted documents in discovery in reliance on PTO 35 and whose documents will be unsealed by virtue of the accompanying order should have an opportunity to make application to the Court of Appeals for a stay and for relief from our decision. Accordingly, we will direct the Clerk promptly to notify third" }, { "docid": "22881936", "title": "", "text": "the wholesale declassification motion in which their documents are implicated. This prejudice may result because they are removed from the controversy or difficult to locate years after their submission of documents or because they lack the resources or will to oppose an entire motion covering all the discovery materials in a case to which they are not a party. Lastly, we believe that plaintiffs have effectively waived their right to seek wholesale declassification. The parties voluntarily entered into PTO 35 in order to facilitate discovery. See note 10 supra. They agreed upon a method by which to challenge confidentiality designations. They also agreed that the information produced would be used only by “qualified” individuals and would be used only in the preparation for trial “and shall not be used for any other purpose whatsoever.” Plaintiffs are now attempting to abrogate that agreement. PTO 35 did not contemplate such an unwieldy approach. Rather, PTO 35 instituted a more particularized approach for objections. All parties have relied on these provisions in producing documents, and wholesale declassification would undermine their justified expectations. Plaintiffs cannot now attempt to undo what they have willingly wrought; having made their bed, they must sleep in it. We note that Judge Frankel reached a similar conclusion in GAF Corp. v. Eastman Kodak Co., 415 F.Supp. 129 (S.D.N.Y.1976). In that antitrust case, the parties produced tens of thousands of documents under an agreed order of confidentiality, providing that all documents produced in discovery would be used solely for the purpose of that litigation. GAF subsequently sought permission to turn fifty-two documents over to the Antitrust Division of the Department of Justice. Judge Frankel denied their request, concluding that the parties’ “shared and explicit assumption” that discovery in the case was for purposes of that case alone went “a long way toward denial of GAF’s request without more.” Id. at 132. Inasmuch as there is a paucity of authority on this point, we rest our decision essentially upon our own analysis. We note, however, that our conclusion is supported by the pithy and forceful opinion of Judge Russell Smith in" }, { "docid": "9913135", "title": "", "text": "the fruits of its work. Similarly, the disclosure to Kodak of the GAF memoran-da by the Government would require the consent of GAF. MULLIGAN, Circuit Judge, dissenting: I respectfully dissent. My brother Gur-fein has fully and fairly set forth the facts which in any event are not really disputed. When GAF brought its antitrust action against Kodak in 1973, counsel for both parties entered into an explicit agreement that Kodak would produce documents at the discovery stage but solely for the purposes of that suit and no other. Pursuant to that understanding Kodak surrendered some 400,000 documents, and GAF counsel and economists dutifully indexed and analyzed them to determine their antitrust significance. We were advised on the oral argument of this appeal that this exercise cost GAF some two million dollars. When the Antitrust Division of the United States Department of Justice in 1976 indicated its interest in the documents and naturally in the professional opinion of the stable of cognoscenti assembled by the plaintiff, GAF was understandably anxious to provide them. Judge Frankel, however, held that the documents, the indices and the interpretative comments were by express agreement to be utilized solely for the purposes of the private lawsuit. GAF Corp. v. Eastman Kodak Co., 415 F.Supp. 129 (S.D. N.Y.1976). No one seems to question the propriety of the protective order which he issued. Subsequently, Congress enacted the Antitrust Improvements Act of 1976, P.L. 94-435, which inter alia permitted the Government to issue a Civil Investigative Demand (CID) against non-target persons who were in possession of “documentary material” or “information” which related to a civil antitrust investigation. The Department of Justice thereupon served GAF with a CID requesting the Kodak documents as well as the analyses of the GAF experts whether in final or draft form. While GAF was obviously eager to comply, it was understandably concerned with Judge Frankel’s protective order. Despite the passage of the Amendments, GAF resisted the demand, precipitating this litigation. Served with a similar CID, Kodak did not resist and remains perfectly willing to supply all documents sought by the Government. The Department of" }, { "docid": "22881934", "title": "", "text": "declassification of millions of pages of documents, years after they have been produced, would require a tremendous concentration of judicial and litigants’ resources. It would be virtually impossible for us to consider declassification document-by-document at this juncture. PTO 35 provided a procedure for contemporaneous objection to confidentiality designations which was readily available to plaintiffs, but which they chose not to exploit. Although PTO 35 provides that the failure of any party to challenge a confidentiality designation contemporaneously shall not be deemed a waiver of its right to challenge the propriety of such designation at any time thereafter, this does not mean that a party may sit on its hands while the mountain of discovery materials grows and then attempt to challenge the protection of such material with the same ease with which it could have raised an objection contemporaneously. A party seeking wholesale declassification must first attempt to justify the investment of judicial and private resources demanded by such an exercise. Thus, to this extent, wholesale declassification shifts part of the burden to the party seeking disclosure. Cf. Iowa Beef Processors, Inc. v. Bagley, 601 F.2d 949 (8th Cir.), cert. denied sub nom. Iowa Beef Processors, Inc. v. Smith, 441 U.S. 907, 99 S.Ct. 1997, 60 L.Ed.2d 376 (1979) (before dissolving longstanding protective order, party seeking dissolution bears burden of showing that intervening circumstances have removed potential prejudice from disclosure that protective order was initially intended to prevent). In terms of complex case management, we also believe that wholesale declassification is a poor, inappropriate, and unfair tool, not only with respect to the interests of the litigants, but also with respect to the interests of third parties who are frequently drawn into the vortex. It is common that, in response to a subpoena to attend a deposition and produce related documents, and in reliance upon an umbrella confidentiality order, third parties divulge sensitive commercial information without asserting their right to be protected by a court in their “home jurisdiction.” Wholesale declassification might unfairly prejudice the rights of such third parties because they may not be in a position to contest" }, { "docid": "22881885", "title": "", "text": "1977, by which time hundreds of thousands of documents and hundreds of voluminous pleadings had been designated confidential without objection; and (3) throughout the history of the litigation plaintiffs have never once availed themselves of the procedures of PTO 35 to challenge the propriety of the designation of any specific documents as confidential. Moreover, by designating as confidential hundreds of thousands of their own documents produced in discovery for defendants, plaintiffs have made as much use of PTO 35 as have defendants. Under these circumstances, plaintiffs have ratified PTO 35 and we will treat it as a consent order. When the wholesale declassification motion was filed on June 28, 1977, this case was still assigned to the docket of Judge Higginbotham, who briefly considered the motion but deferred ruling on it in light of other, more pressing imperatives of case management. Facing the onerous tasks of completing discovery, disposing of the surnmary judgment motions, and moving the case to trial, we followed essentially the same course. We did, however, discuss declassification with counsel on a number of occasions shortly after assuming the case. See infra pages 877-878. More importantly in order to satisfy plaintiffs’ complaints that PTO 35 was hampering their trial preparation by barring them from adequately discussing material produced in discovery with Zenith executives and their consumer electronic products experts, we initiated procedures that expanded the scope of PTO 35 by creating two additional categories of persons entitled to have access to PTO 35 material: “qualified executives” and “qualified witnesses.” Although we were (and still are) convinced that PTO 184 satisfied plaintiffs’ trial-preparation needs, plaintiffs continued to press for resolution of -their confidentiality motions, and we heard them again at the conclusion of the final summary judgment argument in August 1980. We again deferred consideration of these motions — this time pending our decision on the motions for summary judgment. It is useful to underscore the different procedural settings of the case at the time of our various hearings on the declassification motions and at the present. The early hearings took place at a purely pretrial stage. The" }, { "docid": "9913134", "title": "", "text": "order should be predicated upon a particular showing of the need for protection of specific materials, so that the statutory power we have upheld will not be defeated by a too narrow application in the particular case. . Section 1313(c) does permit the Government to reveal materials obtained by a CID in the course of taking oral testimony without the consent of the “person” who produced them. The District Court, may, however, in its discretion, subject individual documents passed on to the Government to an order barring unconsent-ed use of such documents in the deposition process. That sort of order — which creates a further safeguard for confidentiality than that provided under § 1313(c) — would be available upon a demonstration that extraordinary protection should be afforded to designated materials because of their special confidential nature or in other interests of justice. . We emphasize that disclosure to outsiders of the GAF memoranda will not only require Kodak’s permission but also the consent of GAF, since it has a significant interest in the disposition of the fruits of its work. Similarly, the disclosure to Kodak of the GAF memoran-da by the Government would require the consent of GAF. MULLIGAN, Circuit Judge, dissenting: I respectfully dissent. My brother Gur-fein has fully and fairly set forth the facts which in any event are not really disputed. When GAF brought its antitrust action against Kodak in 1973, counsel for both parties entered into an explicit agreement that Kodak would produce documents at the discovery stage but solely for the purposes of that suit and no other. Pursuant to that understanding Kodak surrendered some 400,000 documents, and GAF counsel and economists dutifully indexed and analyzed them to determine their antitrust significance. We were advised on the oral argument of this appeal that this exercise cost GAF some two million dollars. When the Antitrust Division of the United States Department of Justice in 1976 indicated its interest in the documents and naturally in the professional opinion of the stable of cognoscenti assembled by the plaintiff, GAF was understandably anxious to provide them. Judge Frankel, however," }, { "docid": "22881883", "title": "", "text": "immediate predecessor in this case, Judge A. Leon Higginbotham, Jr., on December 19, 1975, slightly more than one year after the filing of the Zenith complaint. That order supplanted a more restrictive confidentiality order that had been entered by Judge Shaw in the District of New Jersey at the outset of the National Union Electronic Corporation (“NUE”) litigation. PTO 35 states that many documents produced for discovery relate to trade secrets or other confidential research, development or commer cial information, as those terms have been defined pursuant to Rule 26(c)(7) of the Federal Rules of Civil Procedure. The order defines “confidential information” as any information that is designated “confidential” at the time of its disclosure by the disclosing party. The order provides that confidential information shall be used only in the preparation for trial and/or trial of these actions, and not for any other purpose whatsoever. PTO 35 further provides that confidential information may be disclosed only to persons denominated as “qualified persons,” and provides specific procedures by which additional “qualified persons” may be named. The order requires parties objecting to a “confidential” designation of information to follow prescribed procedures in order to challenge that designation. Parties seeking confidential treatment of information, however, must ultimately bear the burden of establishing their right to the court’s protection. Upon final determination of these actions, PTO 35 requires all confidential information to be returned to the producing party. Of critical importance to the matters before us is the fact that PTO 35 governs only pretrial discovery and does not.address the confidentiality of documents at open pre-trial hearings or at trial. The parties dispute whether PTO 35 was a product of their overt agreement, or at least their mutual acquiescence, or whether Judge Higginbotham imposed the order after considering the parties’ proposals, but without their joint approval. It is indisputable, however, that: (1) throughout almost a decade of litigation, parties (plaintiffs as well as defendants) and non-parties to these actions have produced and marked “confidential” millions of documents in reliance upon PTO 35; (2) plaintiffs failed to challenge PTO 35 prior to June 28," }, { "docid": "22881884", "title": "", "text": "The order requires parties objecting to a “confidential” designation of information to follow prescribed procedures in order to challenge that designation. Parties seeking confidential treatment of information, however, must ultimately bear the burden of establishing their right to the court’s protection. Upon final determination of these actions, PTO 35 requires all confidential information to be returned to the producing party. Of critical importance to the matters before us is the fact that PTO 35 governs only pretrial discovery and does not.address the confidentiality of documents at open pre-trial hearings or at trial. The parties dispute whether PTO 35 was a product of their overt agreement, or at least their mutual acquiescence, or whether Judge Higginbotham imposed the order after considering the parties’ proposals, but without their joint approval. It is indisputable, however, that: (1) throughout almost a decade of litigation, parties (plaintiffs as well as defendants) and non-parties to these actions have produced and marked “confidential” millions of documents in reliance upon PTO 35; (2) plaintiffs failed to challenge PTO 35 prior to June 28, 1977, by which time hundreds of thousands of documents and hundreds of voluminous pleadings had been designated confidential without objection; and (3) throughout the history of the litigation plaintiffs have never once availed themselves of the procedures of PTO 35 to challenge the propriety of the designation of any specific documents as confidential. Moreover, by designating as confidential hundreds of thousands of their own documents produced in discovery for defendants, plaintiffs have made as much use of PTO 35 as have defendants. Under these circumstances, plaintiffs have ratified PTO 35 and we will treat it as a consent order. When the wholesale declassification motion was filed on June 28, 1977, this case was still assigned to the docket of Judge Higginbotham, who briefly considered the motion but deferred ruling on it in light of other, more pressing imperatives of case management. Facing the onerous tasks of completing discovery, disposing of the surnmary judgment motions, and moving the case to trial, we followed essentially the same course. We did, however, discuss declassification with counsel on a" } ]

[ { "docid": "17561940", "title": "", "text": "parties to appeal from “all final decisions, judgments, orders, and decrees” entered by the district court in bankruptcy matters. 28 U.S.C. § 158(d). Generally, an order is “final” in an adversary action in the bankruptcy court only if it “ends the entire adversary proceeding ‘on the merits and leaves nothing for the court to do but enter the judgment.’ ” In re Unanue Casal, 998 F.2d 28, 31 (1st Cir.1993) (quoting Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 375, 107 S.Ct. 1177, 94 L.Ed.2d 389 (1987)); see also In re Harrington, 992 F.2d 3, 6 n. 3 (1st Cir.1993). The district court’s opinion in the instant case only resolved whether the sanctions imposed against Cannon and Blagg were not erroneous. It did not resolve the merits of the underlying litigation; there is no question that the amount and dischargeability of Williams’ federal income tax liability remains undecided. Hence, the order is not final in the traditional sense. Nonetheless, pursuant to Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and its progeny, appeal of a small class of what are customarily considered non-final orders is permitted. See In re Unanue Casal, 998 F.2d at 31 (Cohen doctrine applies in bankruptcy proceedings). Cohen established “the collateral order doctrine” and permits an appeal when the relevant order (1) involves an issue unrelated to the merits of the case, and which is capable of being reviewed without disrupting the main dispute, (2) constitutes a complete resolution of the issue and is not unfinished or inconclusive, (3) involves a right incapable of vindication on appeal from a final judgment, and (4) involves an important and unsettled question of controlling law. See Appeal of Licht & Semonoff, 796 F.2d 564, 570-71 (1st Cir.1986); see also In re Newport Sav. & Loan Ass’n, 928 F.2d 472, 474 (1st Cir.1991) (citations omitted). This court has not previously decided the issue presented in this case: whether an order sanctioning an attorney who no longer represents a party in the underlying dispute is immediately appealable. Our decision in Licht and" } ]

[ { "docid": "18600442", "title": "", "text": "the former trustee, to the debtor’s estate. Rather, like an order denying a motion for summary judgment or for dismissal of a claim, the order here merely allows the proposed litigation to go forward, the very type of disposition this Court and others have repeatedly held is not “final” because it does not conclusively or effectively determine the outcome of the litigation. See In re Empresas Noroeste, Inc., 806 F.2d 315, 317 (1st Cir.1986) (order denying motion to dismiss is non-appealable interlocutory order); Catlin v. United States, 324 U.S. 229, 236, 65 S.Ct. 631, 635, 89 L.Ed. 911 (1945). Rodriguez remains free to assert any claims or defenses he may have, including a motion to dismiss, and, if unsuccessful, can ultimately appeal in respect to relevant issues. See In re Fondiller, supra, at 442 (bankruptcy court order authorizing attorney to represent trustee in litigation against debt- or is not a final order, although appeal dismissed on ground of lack of standing). The district court does have discretion to exercise jurisdiction over an appeal from an interlocutory order, under 28 U.S.C. § 157(a). Examining the nature of the order, the district court concluded that said order was not surrounded by the finality or exceptional conditions which would warrant intervention. The burden of litigation, the only burden alleged by appellant, cannot alone constitute the irreparable harm necessary to warrant appellate jurisdiction over an interlocutory order. In re Empresas Noroeste, Inc., supra; Rodriguez v. Banco Central, 790 F.2d 172, 178 (1st Cir.1986); In re American Colonial Broadcasting Corp., 758 F.2d 794, 803 (1st Cir.1985). Thus the district court properly found that it lacked jurisdiction to hear this appeal. Standing The requirement of appellate standing in bankruptcy proceedings derives from Section 39(c) of the former Bankruptcy Act of 1898. 11 U.S.C. § 67(c) (1976) (repealed 1978). Under this section, the right of appellate review in bankruptcy proceedings has historically been limited to “persons aggrieved,” i.e., to those persons whose rights or interests are “directly and adversely affected pecuniarily” by the order or decree of the bankruptcy court. In re Fondiller, 707 F.2d 441, 442-43" }, { "docid": "12203613", "title": "", "text": "bankruptcy court’s disbursement order, declining to reach the merits of Cellular lOl’s argument that its settlement with AT & T released Channel and Price’s joint administrative claim on behalf of Price. It simply held that Cellular 101 had an obligation to raise the release issue when it was before the Ninth Circuit previously because “the alleged release would have mooted the appeal.” The BAP concluded that Cellular 101 had therefore waived the argument. Cellular 101 petitioned for rehearing, arguing that a party cannot waive a mootness defense because it is jurisdictional. The BAP denied the petition, stating that Cellular 101 had not raised a mootness defense, only the non-jurisdictional affirmative defense of settlement and release. Cellular 101 timely appealed. II. Discussion We review decisions of the BAP de novo. Price v. U.S. Tr. (In re Price), 353 F.3d 1135, 1138 (9th Cir.2004); Christian Life Ctr. Litig. Def. Comm. v. Silva (In re Christian Life Ctr.), 821 F.2d 1370, 1373 (9th Cir.1987). We review the bankruptcy court’s conclusions of law de novo and its factual findings for clear error. See Price, 353 F.3d at 1135; see also Salazar v. McDonald (In re Salazar), 430 F.3d 992, 994(9th Cir.2005). The litigation over this administrative claim has been going on since 2001, and the parties have fought their way over the issue from the bankruptcy court to this court twice, passing through the district court and the BAP one time each along the way. As a result, the matter has now been considered by no fewer than eleven judges and is the subject of two published opinions of this court. Cellular 101 contends that it has followed proper procedure and that it was appropriate for it to wait to raise its settlement defense when it did. We disagree. The Supreme Court has held that all counsel have a duty “to bring to the federal tribunal’s attention, without delay, facts that may raise a question of mootness.” Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n. 23, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (internal quotations, citations and emphasis omitted). According to" }, { "docid": "6793679", "title": "", "text": "our appellate jurisdiction. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584-85, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) (jurisdictional issues may be addressed in any sequence); cf. Arizonans for Official English v. Arizona, 520 U.S. 43, 66-67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (court may assume without deciding that standing exists in order to analyze mootness). Article III prohibits federal courts from deciding “moot” cases or controversies— that is, those in which “the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)); Gulf of Maine Fishermen’s Alliance v. Daley, 292 F.3d 84, 87 (1st Cir.2002). Mootness problems may arise at any point in a proceeding. “Even if an actual case or controversy exists at the inception of litigation, a case may be rendered moot (and, therefore, subject to dismissal) if changed circumstances eliminate any possibility of effectual relief.” Me. Sch. Admin. Dist. No. 35 v. Mr. & Mrs. R., 321 F.3d 9, 17 (1st Cir.2003); see also Mangual v. Rotger-Sabat, 317 F.3d 45, 60 (1st Cir.2003). That is because, under Article III, federal courts have no authority to decide questions that cannot affect the rights of the litigants before them. Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (citing North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971)). In lay terms, we recognize, it might be somewhat odd to describe Reid’s claims in this case as “moot.” Without a doubt, there is a substantial and continuing dispute between Reid and the government concerning his access to Time magazine. The government still has not turned over the Time letters that it seized; Reid still demands access to those letters. In that pragmatic sense, the controversy remains “live” and the parties adverse. The problem is that even if this court decided the questions raised" }, { "docid": "14971335", "title": "", "text": "compromises. Fed.R.Civ.P. 23(e). They do not apply to involuntary dismissals, such as sua sponte dismissal for mootness. In Amchem Products, Inc., the Supreme Court stated, albeit in dicta, that “Rule 23’s requirements must be interpreted in keeping with Article III constraints, and with the Rules Enabling Act, which instructs that rules of procedure ‘shall not abridge, enlarge or modify any substantive right[.]’ ” 521 U.S. at 613, 117 S.Ct. 2231 (quoting 28 U.S.C. § 2072(b)); see Fed. R.Civ.P. 82 (stating that the Federal Rules of Civil Procedure “do not extend or limit the jurisdiction of the district courts”). “[A] class action is a procedural device.” 1 Newburg on Class Actions § 1:2. It “cannot confer standing to sue on a named plaintiff who seeks to represent a class[.]” Id. Here, the District Court, couching its decision in terms of the “fair, adequate, and reasonable” language of Rule 23(e), vacated its order granting preliminary approval of the settlement because the statutory basis for the plaintiffs’ claims had been eliminated. Instead, it should have dismissed both named plaintiffs’ complaints as moot since their injuries were based on the electronic printing of card expiration dates during the period for which the Clarification Act eliminated the corresponding statutory injury, 15 U.S.C. § 1681n(d). See Amchem Prods., Inc., 521 U.S. at 613,117 S.Ct. 2231. Mootness is “the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of litigation (standing) must continue throughout its existence (mootness).” Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n. 22, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (internal quotation marks omitted); Artway v. Att’y Gen. of the State of N.J., 81 F.3d 1235, 1246 (3d Cir.1996) (“Mootness ... asks whether a party who has established standing has now lost it because the facts of her case have changed over time.”). Therefore, we look to the doctrine of standing to inform our application of the mootness doctrine. “In its constitutional dimension, standing imports justiciability: whether the plaintiff has made out a ‘case or controversy’ between himself and the defendant within" }, { "docid": "22337767", "title": "", "text": "the Court observed, the statutory objective being “to combine in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results.” Id. “Were appellate review available on demand whenever a district court definitively resolved a contested legal issue, without regard to whether the entire adversary proceeding has been resolved, the ‘finality rule’ would be eviscerated.” In re Harrington, 992 F.2d at 6. See also Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 673-74, 66 L.Ed.2d 571 (1981) (citing reasons for final judgment rule as including deference to the trial judge, the potential that piecemeal litigation will undermine the role of the trial judge, efficient judicial administration, and avoidance of harassment and cost of successive appeals from intermediate rulings). A decision is final if it “ends the ligation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). See also Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978) (quoting Catlin); (In re IBI Security Serv., Inc.), 174 B.R. at 668 (quoting Catlin). An interlocutory order, on the other hand, is one which “only decides some intervening matter pertaining to the cause, and which requires further steps to be taken in order to enable the court to adjudicate the cause on the merits.” In re American Colo nial Broad. Corp., 758 F.2d 794, 801 (1st Cir.1985) (quoting In re Merle’s, Inc., 481 F.2d 1016 (9th Cir.1973)). Bankruptcy matters, with assorted disputes — e.g., adversary proceedings, administrative applications, and contested matters— within the larger liquidation or reorganization case, are the object of “special considerations” under the finality doctrine. Stubbe v. Banco Central Corp. (In re Empresas Noroeste, Inc.), 806 F.2d 815, 316 (1st Cir.1986). See also In re Harrington, 992 F.2d at 6 n. 3 (describing three distinct types of proceedings in a bankruptcy case and comparing each to ordinary civil actions); Official Bondholders Comm. v. Chase Manhattan" }, { "docid": "16621619", "title": "", "text": "the Supreme Court’s grant of respondent’s application to vacate the stay of execution divested us of jurisdiction. “There is no question as to the power of a Circuit Justice[, or the Court itself,] to dissolve a stay entered by a court of appeals.” Commodity Futures Trading Comm’n v. British American Commodity Options Corp., 434 U.S. 1316, 1319, 98 S.Ct. 10, 54 L.Ed.2d 28 (1977); Petition of Johnson, 72 S.Ct. 1028, 1031-32, 96 L.Ed. 1377 (1952) (discussing power of Circuit Justice to stay execution of judgment). The exercise of that power does not, however, constitute a decision on the merits. See Messer v. Kemp, 831 F.2d 946, 957 (11th Cir.1987). Nor does it necessarily deprive a lower court of jurisdiction. Cf. Johnson, 72 S.Ct. at 1031-32 (suggesting that stay of execution of district court judgment could be entered by Circuit Justice pending resolution of case by court of appeals); Messer, 831 F.2d at 957 (holding that Supreme Court’s stay of execution did not divest court of appeals of jurisdiction to consider petitioner’s appeal en banc). Because no final judgment had been entered by this court on the merits at the time the Supreme Court vacated the stay of execution, we conclude we retain jurisdiction over these appeals. Having now received and reviewed the responses to our order to show cause, we conclude that Hain’s execution has rendered these appeals moot. “ ‘A case is moot when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.’ ” Citizens for Responsible Gov’t State Political Action Comm. v. Davidson, 236 F.3d 1174, 1182 (10th Cir.2000) (quoting City of Erie v. Pap’s AM., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000)); see also Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (“To qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.”) (internal quotation omitted). It is obvious, under the circumstances presented here, that Hain can" }, { "docid": "19916154", "title": "", "text": "judgment on the merits of plaintiffs’ § 1983 action. Both parties contend, and we agree, that Law No. 90 mooted that appeal. Under that statute, the Commission must use bilingual ballots now that Puerto Rico has made bilingual ballots mandatory. Because we can no longer issue any judicial remedy capable of affecting the parties’ rights, the case no longer presents a live “case or controversy” under Article III, and we lack jurisdiction to decide its merits. See City of Erie v. Pap’s A.M., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000); Horizon Bank & Trust Co. v. Massachusetts, 391 F.3d 48, 53 (1st Cir.2004). We hold that the district court’s judgment should be vacated because it was rendered moot by an independent, intervening act of legislation. As a general rule, federal courts of appeals vacate the judgment below when a civil case becomes moot during the pendency of an appeal. Arizonans for Official English v. Arizona, 520 U.S. 43, 71, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997); see also Rusco Steel Co. v. Atkinson-Kiewit, JIV, 98 F.3d 1333 (1st Cir.1996) (per curiam). Vacatur, an equitable remedy, is ordinarily granted unless the losing party appealing the judgment was responsible for making the case unreviewable, for instance by failing to appeal or by entering into a settlement. See U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 24-25, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994); Shelby v. Superformance Int’l, Inc., 435 F.3d 42, 46 (1st Cir.2008). In such cases, vacatur is inappropriate because it was within that party’s power to keep the controversy live and the judgment is therefore unreviewable only by choice. Bancorp, 513 U.S. at 25, 115 S.Ct. 386. When the losing party’s voluntary action causes the case to become moot, a presumption against vacatur applies, and vacatur is appropriate only when it would serve the public interest. Id. at 25-28, 115 S.Ct. 386. In contrast, “[v]acatur is in order when mootness occurs through happenstance — circumstances not attributable to the parties.” Arizonans for Official English, 520 U.S. at 71, 117 S.Ct. 1055. Vacatur, unlike" }, { "docid": "19394197", "title": "", "text": "by a favorable judicial decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In other words, for a federal court to have authority under the Constitution to settle a dispute, the party before it must seek a remedy for a personal and tangible harm. \"The presence of a disagreement, however sharp and acrimonious it may be, is insufficient by itself to meet Art. III's requirements.\" Diamond, supra, at 62, 106 S.Ct. 1697. The doctrine of standing, we recently explained, \"serves to prevent the judicial process from being used to usurp the powers of the political branches.\" Clapper v. Amnesty Int'l USA, 568 U.S. ----, ----, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013). In light of this \"overriding and time-honored concern about keeping the Judiciary's power within its proper constitutional sphere, we must put aside the natural urge to proceed directly to the merits of [an] important dispute and to 'settle' it for the sake of convenience and efficiency.\" Raines v. Byrd, 521 U.S. 811, 820, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997) (footnote omitted). Most standing cases consider whether a plaintiff has satisfied the requirement when filing suit, but Article III demands that an \"actual controversy\" persist throughout all stages of litigation. Already, LLC v. Nike, Inc., 568 U.S. ----, ----, 133 S.Ct. 721, 726, 184 L.Ed.2d 553 (2013) (internal quotation marks omitted). That means that standing \"must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.\" Arizonans for Official English v. Arizona, 520 U.S. 43, 64, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). We therefore must decide whether petitioners had standing to appeal the District Court's order. Respondents initiated this case in the District Court against the California officials responsible for enforcing Proposition 8. The parties do not contest that respondents had Article III standing to do so. Each couple expressed a desire to marry and obtain \"official sanction\" from the State, which was unavailable to them given the declaration in Proposition 8 that \"marriage\" in California is" }, { "docid": "23380840", "title": "", "text": "re Ames Department Stores, Inc., 76 F.3d 66, 70 (2d Cir.1996) (“Because of the deleterious nature of the [district court’s] comments [regarding an attorney’s conduct] it was especially important that the orders in which they are contained meet the ... substantive requirements of the law.”). Be all that as it may, we cannot resolve the merits of this sanctions appeal because we lack jurisdiction to entertain it. I Mootness Article III of the Constitution limits this Court to consideration of appeals involving a live case or controversy. See U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 19-21, 115 S.Ct. 386, 389, 130 L.Ed.2d 233 (1994) (a case must exist at all stages of federal proceedings). In a live controversy, the parties retain some interest that is capable of redress. See, e.g., New England Health Care Employees Union, Dist. 1199 v. Mount Sinai Hosp., 65 F.3d 1024, 1029 (2d Cir.1995); Haley v. Pataki, 60 F.3d 137, 141 (2d Cir.1995). This appeal insofar as the client, Agee, is concerned was rendered moot by his March 1996 settlement with Paramount. He freely entered this agreement discharging him from any obligation to pay the fee award as provided in the district court’s judgment. See U.S. Bancorp, 513 U.S. at 23-25, 115 S.Ct. at 391 (when considering whether to vacate a judgment that has been rendered otherwise moot by a settlement, an appellate court should look to “whether the party seeking relief from the judgment below caused the mootness by voluntary action.”). After voluntarily entering into the settlement, Agee may not now complain that his right to appellate review has been lost since he himself chose to make the sanctions award unreviewable. Appellant cites Perkins v. General Motors Corp., 965 F.2d 597 (8th Cir.1992), for the proposition that the parties’ voluntary settlement of the underlying case does not render moot the sanctions order against a party and her attorney. The court there based its decision on concern for the effect on the attorney’s ability to seek relief from the sanctions order and the public interest in ensuring compliance with the rules of" }, { "docid": "4169193", "title": "", "text": "filed a brief with this Panel supporting the debtors’ request for reversal of the bankruptcy court’s order. II. Discussion The Bankruptcy Code provides that: [notwithstanding any other provision of this section, no individual or family farmer may be a debtor under this title who has been a debtor in a case pending under this title at any time in the preceding 180 days if — ... (2) the debtor requested and obtained the voluntary dismissal of the case following the filing of a request for relief from the automatic stay provided by section 362 of this title. 11 U.S.C. § 109(g)(2). Generally, based on a dismissal pursuant to this section, a debtor is ineligible for relief under the Bankruptcy Code for a period of 180 days. “Mootness in bankruptcy appellate proceedings, as elsewhere, is premised on jurisdictional and equitable considerations stemming from the impracticability of fashioning fair and effective relief.” Rochman v. Northeast Utilities Service Group (In re Public Service Company of New Hampshire), 963 F.2d 469, 471 (1st Cir.1992) (citations omitted). There are constitutional limitations imposed on the exercise of Article III judicial power, id., and an actual ease or controversy must exist at every stage of the appellate proceedings. Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 1068, 137 L.Ed.2d 170 (1997). The present case was dismissed on May 14, 1997, and the debtors did not seek a stay of the order of dismissal. Presently, more than 180 days have passed since the order of dismissal. We therefore conclude that since any injunction against refiling has expired, there is presently no reviewable controversy. See In re Frieouf, 938 F.2d 1099 (10th Cir.1991), cert. denied, 502 U.S. 1091, 1103, 112 S.Ct. 1161, 117 L.Ed.2d 408 (1992)(a bankruptcy court’s denial of all access to bankruptcy relief for 180 days is not reviewable after the 180 days have passed). Therefore, we conclude here that the issue raised by the debtors and Source One on appeal is moot, as the bar period has expired. An exception to the mootness doctrine exists when an issue between the parties is" }, { "docid": "9170622", "title": "", "text": "Res. Def. Council v. U.S. Nuclear Regulatory Comm'n, 680 F.2d 810, 814-15 (D.C. Cir. 1982) (holding that a procedural challenge to a regulation promulgated in alleged violation of notice and comment requirements became moot due to re-promulgation of the rule with notice and comment). Levesque, which the Commonwealth relies upon to argue that its procedural challenge to the IFRs has not been mooted, is distinguishable. Levesque v. Block, 723 F.2d 175 (1st Cir. 1983). In that case, the district court had found the interim rule to be void for \"procedural omissions\" while it was still in effect. Id. at 177. Here, any determination by us as to the validity of the IFRs would be made for the first time after they have ceased to exist. We see no point in that. Moreover, in Levesque, the court also considered whether the existing final rule was valid, which is not the issue here. Id. at 187. B. Article III Standing for Substantive Challenges We turn to whether the Commonwealth has established Article III standing for its substantive challenges to the federal regulations. \"[N]o principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.\" DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). As one aspect of the case-or-controversy requirement, plaintiffs must \"establish that they have standing to sue.\" Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997) ; see also Arizonans for Official English v. Arizona, 520 U.S. 43, 64, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). \"[T]he standing inquiry [is] focused on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed.\" Davis v. Fed. Election Comm'n, 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008). \"The existence of standing is a legal question, which we review de novo.\" Kerin v. Titeflex Corp., 770 F.3d 978, 981 (1st Cir. 2014). \"The party invoking federal jurisdiction bears the burden of establishing\" that it has standing. Lujan" }, { "docid": "5349545", "title": "", "text": "direct review.” 807 F.2d at 1155. Thus, Appellants’ reliance on Fassett and Trevino-Barton is misplaced. In sum, the District Courts’ orders de-certifying the collective actions were interlocutory. Appellants were not entitled to appeal these orders directly under § 1291. Nor can Appellants avoid the strong presumption against interlocutory review of such orders by voluntarily dismissing all of their claims under Rule 41. Thus, these appeals must be dismissed for lack of appellate jurisdiction. IV. Appellees urge an alternative bar to our exercise of jurisdiction over the review sought by Appellants, namely that, even if we were to find finality, Appellants’ voluntary relinquishment of their individual claims has rendered the cases moot. Article III requires “that ‘an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.’” Symczyk, 133 S.Ct. at 1528 (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997)). An action is rendered moot when “an intervening circumstance deprives the plaintiff of a ‘personal stake in the outcome of the lawsuit,’ at any point during the litigation.” Id. (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477-78, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990)). We understand Appellants’ argument to be that they continue to maintain a personal stake in the outcome of the litigation because, as a result of (and notwithstanding) their dismissal of their claims with prejudice, “their individual claims are now tied to the outcome of this appeal.” (Kuznyetsov Resp. to West Penn Mot. 12-14). Appellants apparently believe that reversal of the District Courts’ decertification orders on appeal would resurrect their individual claims once again at the district court level. However, this reflects a fundamental misunderstanding of the nature of a dismissal with prejudice. The claims that Appellants dismissed with prejudice are gone forever—they are not reviewable by this Court and may not be recaptured at the district court level. See Fairley v. Andrews, 578 F.3d 518, 522 (7th Cir.2009) (holding that where a litigant voluntarily dismisses a portion of their claims in order to secure an appeal," }, { "docid": "9811376", "title": "", "text": "its own action against GATX seeking to recover damages exceeding $10 million arising out of GATX’s conversion of its aircraft to freighter configuration. On February 27, 1997, BNY denied MBP’s request for a waiver of the conflict. MBP terminated its representation of BNY on March 5, 1998. On March 6, 1998, BNY moved to intervene in all related cases for the purpose of disqualifying MBP from representing GATX in the pending litigation. The district court granted that motion and also granted BNY’s motion to disqualify MBP in all of the pending litigation. See GATX/Airlog, 8 F.Supp.2d at 1188. GATX seeks to have that order vacated in this mandamus proceeding. II. As a threshold matter, we must decide whether this mandamus proceeding has become moot due to events that occurred after GATX filed its petition. A case is moot only if interim events have completely and irrevocably eradicated the effects of an allegedly improper ruling. See In Re Pintlar Corp., 124 F.3d 1310, 1312 (9th Cir.1997). The party asserting mootness has the heavy burden of establishing that there is no effective relief remaining for a court to provide. See id.; Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 853 (9th Cir.1985). If a case does become moot while on appeal, however, we are required to dismiss it. See Dufresne v. Veneman, 114 F.3d 952, 954 (9th Cir.1997). “To qualify as a case fit for federal-court adjudication, ‘an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.’ ” Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (quoting Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975) (quoting Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974)). MBP has acknowledged that it cannot re-enter the litigation even if we were to grant GATX’s petition for mandamus and overturn the disqualification order. Since this petition was filed, another of MBP’s clients, General Electric Capital Corporation (“GECC”), has also filed a similar" }, { "docid": "4169194", "title": "", "text": "limitations imposed on the exercise of Article III judicial power, id., and an actual ease or controversy must exist at every stage of the appellate proceedings. Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 1068, 137 L.Ed.2d 170 (1997). The present case was dismissed on May 14, 1997, and the debtors did not seek a stay of the order of dismissal. Presently, more than 180 days have passed since the order of dismissal. We therefore conclude that since any injunction against refiling has expired, there is presently no reviewable controversy. See In re Frieouf, 938 F.2d 1099 (10th Cir.1991), cert. denied, 502 U.S. 1091, 1103, 112 S.Ct. 1161, 117 L.Ed.2d 408 (1992)(a bankruptcy court’s denial of all access to bankruptcy relief for 180 days is not reviewable after the 180 days have passed). Therefore, we conclude here that the issue raised by the debtors and Source One on appeal is moot, as the bar period has expired. An exception to the mootness doctrine exists when an issue between the parties is capable of repetition, yet evading review. The Supreme Court has stated that: [w]e have permitted suits for prospective relief to go forward despite abatement of the underlying injury only in the “exceptional situations,” Los Angeles v. Lyons, 461 U.S., at 109, 103 S.Ct., at 1669, where the following two circumstances were simultaneously present: “ ‘(1) the challenged action [is] 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.’” Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982) (per curiam) (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975)). Lewis v. Continental Bank Corp., 494 U.S. 472, 110 S.Ct. 1249, 1255, 108 L.Ed.2d 400 (1990). The debtors have not demonstrated a reasonable expectation that they will file for bankruptcy in the future; that a secured creditor will obtain relief from stay; that the order granting relief from" }, { "docid": "19394198", "title": "", "text": "S.Ct. 2312, 138 L.Ed.2d 849 (1997) (footnote omitted). Most standing cases consider whether a plaintiff has satisfied the requirement when filing suit, but Article III demands that an \"actual controversy\" persist throughout all stages of litigation. Already, LLC v. Nike, Inc., 568 U.S. ----, ----, 133 S.Ct. 721, 726, 184 L.Ed.2d 553 (2013) (internal quotation marks omitted). That means that standing \"must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.\" Arizonans for Official English v. Arizona, 520 U.S. 43, 64, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). We therefore must decide whether petitioners had standing to appeal the District Court's order. Respondents initiated this case in the District Court against the California officials responsible for enforcing Proposition 8. The parties do not contest that respondents had Article III standing to do so. Each couple expressed a desire to marry and obtain \"official sanction\" from the State, which was unavailable to them given the declaration in Proposition 8 that \"marriage\" in California is solely between a man and a woman. App. 59. After the District Court declared Proposition 8 unconstitutional and enjoined the state officials named as defendants from enforcing it, however, the inquiry under Article III changed. Respondents no longer had any injury to redress-they had won-and the state officials chose not to appeal. The only individuals who sought to appeal that order were petitioners, who had intervened in the District Court. But the District Court had not ordered them to do or refrain from doing anything. To have standing, a litigant must seek relief for an injury that affects him in a \"personal and individual way.\" Defenders of Wildlife, supra, at 560, n. 1, 112 S.Ct. 2130. He must possess a \"direct stake in the outcome\" of the case. Arizonans for Official English,supra, at 64, 117 S.Ct. 1055 (internal quotation marks omitted). Here, however, petitioners had no \"direct stake\" in the outcome of their appeal. Their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California" }, { "docid": "16635369", "title": "", "text": "giving that requirement “a ‘practical’ rather than a ‘technical’ construction.” In re Parque Forestal, Inc., 949 F.2d 504, 508 (1st Cir.1991) (quoting Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964), overruled in part on other grounds by Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000)) (“Parque,” from here on out); see also Bullard, 752 F.3d at 485. For example, we have stamped an order “final” where “there is no possibility [at the time of appeal] that [the] order will be changed or become moot, or that ‘piecemeal appeals’ will waste the time of this court or the parties”— indicators of finality, one and all. See Parque, 949 F.2d at 508. What this means is that in the world of bankruptcy, “final” does not just describe the last order entered at the case’s end — you know, the one “that ultimately disposes of all the debtor’s assets on the basis (perhaps) of the results of many individual proceedings and controversies taking place over many years within the context of the overall bankruptcy case.” Tringali v. Hathaway Mach. Co., 796 F.2d 553, 558 (1st Cir.1986) (Breyer, J.). No, “final” includes an order that decides all — repeat, all — the issues “of a ‘discrete dispute within a larger case.’ ” Id. (quoting In re Am. Colonial Broad. Corp., 758 F.2d 794, 801 (1st Cir.1985) (henceforth, “Colonial ”)); see also Bullard, 752 F.3d at 486 n. 5. Extra-Circuit Caselaw On Orders Denying Stay Relief Now consider orders dealing with stay-relief requests. Orders granting stay relief are orders “disposing of a discrete dispute” and so are final and appealable as of right — on this point every circuit (including this one) that has considered the question agrees. They are final, we have said, echoing the Third Circuit, because ‘“[n]othing more need be done by the district court or the bankruptcy court on the matter of the automatic stay.’ ” As for orders denying stay relief — which is the focus of our attention today —" }, { "docid": "10265279", "title": "", "text": "it is not enough that the requisite interest exist at the outset. “To qualify as a case fit for federal-court adjudication, ‘an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.’ ” Arizonans for Official English v. Arizona, 520 U.S. 43, 67, [117 S.Ct. 1055, 137 L.Ed.2d 170] (1997). Davis v. Federal Election Commission, 554 U.S. at 732-33, 128 S.Ct. 2759; see, e.g., Chamber of Commerce of U.S. v. E.P.A., 642 F.3d 192, 199 (D.C.Cir.2011). The doctrine of mootness “has been described as ‘the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of litigation (standing) must continue throughout its existence (mootness).’ ” Arizonans for Official English v. Arizona, 520 U.S. 43, 68, n. 22, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (quoting United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), which quoted Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973)). “In sum, the mooting of a case can occur in one of two ways. It may occur because the legal issue in dispute is no longer amenable to review and judicial relief would serve no purpose, or it may occur because a party no longer has a personal stake in the controversy and has, in essence, been divested of standing.” 15 Moore’s Federal Practice — Civil § 101.90 (2012). 421 Chestnut Partners, LP v. Aloia (In re Aloia), 496 B.R. 366, 377 (Bankr.E.D.Pa.2013) (emphasis added). “[W]hen the asserted harm is a ‘generalized grievance’ shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant exercise of [federal] jurisdiction.” Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). And the fact that.third parties may benefit if the Debtor is denied a discharge also does not confer standing on Plaintiff, under the facts of this case. In Seldin, the United States Supreme Court explained: In essence the question of standing is whether the litigant" }, { "docid": "10806601", "title": "", "text": "its arguments against the district court’s judgment and injunction. Mootness has thus deprived the United States of the review to which it is entitled. Vacatur is proper. See Arizonans for Official English v. Arizona, 520 U.S. 43, 74, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (holding that vacatur was proper because, “when the mooting event occurred,” the Arizona Attorney General was pursuing his “right to present argument on appeal”). We therefore vacate the judgment of the district court. Burke, 479 U.S. at 365, 107 S.Ct. 734 (vacating and remanding to dismiss complaint); Helliker, 463 F.3d at 880 (same); Martinez, 32 F.3d at 1420. Because Log Cabin has stated its intention to use the district court’s judgment collaterally, we will be clear: It may not. Nor may its members or anyone else. We vacate the district court’s judgment, injunction, opinions, orders, and factual findings' — indeed, all of its past rulings — to clear the path completely for any future litigation. Those now-void legal rulings and factual findings have no precedential, preclusive, or binding effect. The repeal of Don’t Ask, Don’t Tell provides Log Cabin with all it sought and may have had standing to obtain. (We assume without deciding that Log Cabin had standing to seek a declaration that section 654 is unconstitutional and an injunction barring the United States from applying it to Log Cabin’s members. See Arizonans for Official English, 520 U.S. at 66-67, 117 S.Ct. 1055 (court may assume without deciding that standing exists in order to analyze mootness).) Because the case is moot and the United States may not challenge further the district court’s rulings and findings, giving those rulings and findings any effect would wrongly harm the United States. On remand, the district court will dismiss the complaint forthwith. VACATED AND REMANDED WITH DIRECTIONS TO DISMISS. . In light of our disposition, we deny the United States’ Suggestion of Mootness and Motion to Vacate the District Court Judgment filed September 20, 2011. O’SCANNLAIN, Circuit Judge, concurring specially: I fully concur in the court’s opinion. The repeal of Don’t Ask, Don’t Tell has mooted this case," }, { "docid": "2652154", "title": "", "text": "the automatic stay is necessary before a utility may discontinue service. The bankruptcy court held a hearing on September 28, 2006, and issued a memorandum decision on October 5, 2006, denying Jones’ request for sanctions and concluding that 11 U.S.C. § 366(b) expressly permits termination of utility service for failure to pay postpetition bills, which does not violate the automatic stay. Jones filed a timely notice of appeal on October 15, 2006. The bankruptcy case was thereafter dismissed by order entered on November 16, 2006. Keyspan suggests, in a footnote, that the appeal may be moot based on the dismissal of the underlying bankruptcy case. See Brief of Appellee at 5 n.2. Jurisdiction and Standard of Review A bankruptcy appellate panel is duty-bound to determine its jurisdiction before proceeding to the merits even if the parties do not address the issue. See In re George E. Bumpus, Jr. Constr. Co., 226 B.R. 724 (1st Cir. BAP 1998). We have jurisdiction to hear appeals from “final judgments, orders and decrees.” 28 U.S.C. § 158(a); see also Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998). “A decision is final if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” In re Bank of New England, 218 B.R. at 646 (quoting In re American Colonial Broad. Corp., 758 F.2d 794, 801 (1st Cir.1985)). A bankruptcy court’s order determining whether there has been a violation of the automatic stay is a final order that supports appellate jurisdiction, In re Heghmann, 316 B.R. 395, 400 (1st Cir. BAP 2004), and involves a question of law that is subject to de novo review. See Varela v. Ocasio (In re Ocasio), 272 B.R. 815, 822 (1st Cir. BAP 2002); see also Soares v. Brockton Credit Union (In re Soares), 107 F.3d 969, 973 (1st Cir.1997). The bankruptcy court’s interpretation of 11 U.S.C. § 366 is also a question of law and thus, subject to de novo review. In the present ease, the underlying" }, { "docid": "16621620", "title": "", "text": "no final judgment had been entered by this court on the merits at the time the Supreme Court vacated the stay of execution, we conclude we retain jurisdiction over these appeals. Having now received and reviewed the responses to our order to show cause, we conclude that Hain’s execution has rendered these appeals moot. “ ‘A case is moot when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.’ ” Citizens for Responsible Gov’t State Political Action Comm. v. Davidson, 236 F.3d 1174, 1182 (10th Cir.2000) (quoting City of Erie v. Pap’s AM., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000)); see also Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (“To qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.”) (internal quotation omitted). It is obvious, under the circumstances presented here, that Hain can no longer benefit from a ruling in his favor by the en banc court in either pending appeal. See generally Friends of the Earth, Inc. v. Laidlaw Env. Servs., Inc., 528 U.S. 167, 192, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (noting that courts are not licensed “to retain jurisdiction over cases in which ... a plaintiff pursuing a nonsurviving claim has died”); Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (noting that the party seeking relief “must have suffered, or be threatened with, an actual injury ... likely to be redressed by a favorable judicial decision.”). Hain’s counsel suggests that the appeal of the § 848(q)(8) issue falls within the “capable of repetition, yet evading review” exception to the mootness doctrine. We disagree. In order for this exception to apply, two prerequisites must be satisfied: (1) the duration of the challenged action must be too short to be fully litigated prior to its cessation or expiration; and (2) there must be a reasonable expectation that the" } ]

[ { "docid": "5315960", "title": "", "text": "the facts. This objection implicates Rule 702, which reads as follows: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, many testify thereto in the form of an opinion or otherwise. Under the standard for Rule 702 an- nounced in Daubert v. Merrell Dow Pharmaceuticals, Inc., — U.S. -, 113 S.Ct. 2786, 125 L.Ed.2d 469, the trial court must determine whether the expert is proposing to tes tify to (1) scientific, technical, or other specialized knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. Id. at-, 113 S.Ct. at 2796. Whether the expert testimony will assist the trier of fact goes primarily to relevance. Id. at-, 113 S.Ct. at 2795. The very fact that fire departments have specialized arson investigation units argues that arson is an area of technical and specialized knowledge beyond the ken of the average juror. Whether the second fire was the result of arson was a factual question highly relevant to the case and properly addressed by expert testimony. Chief Pearson did not opine that Markum set the fire, but only that someone deliberately set it. Because Markum did not object to Chief Pearson’s qualifications as an arson expert, review on that question is for plain error only. The Post Office v. Portec, Inc., 913 F.2d 802, 806 (10th Cir.1990). District courts have broad discretion in determining the competency of expert witnesses. E.g., Quinton v. Farmland Indus., 928 F.2d 335, 336 (10th Cir.1991); Kloepfer v. Honda Motor Co., 898 F.2d 1452, 1458 (10th Cir.1990); Brownlee v. Gay & Taylor, Inc., 861 F.2d 1222, 1225 (10th Cir.1988). Experience alone can qualify a witness to give expert testimony. See Farner v. Paccar, Inc., 562 F.2d 518, 528-29 (8th Cir.1977); Cunningham v. Gans, 507 F.2d 496, 500 (2d Cir.1974). Chief Pearson worked as a firefighter and Fire Chief for 29 years.’ In addition to observing and extinguishing fires throughout that period, he attended" } ]

[ { "docid": "7349428", "title": "", "text": "would explain: (1) that false confessions or incriminating statements are counterintuitive; (2) why confessions are prejudicial; (3) risk factors for false confessions, such as interrogation techniques; and (4) the framework for how false confessions occur. Dr. Leo would not offer an opinion as to whether Defendant lied or made false statements or whether Defendant’s statements are unreliable. Following the Daubert hearing, defense counsel submitted a lengthy affidavit from Dr. Leo, which discusses: (1) the background of Dr. Leo’s research into false confessions; (2) his theory about the three decision points that lead to a false confession, i.e., the police decision to classify an individual as a suspect; use of psychological interrogation tactics as a means to move the suspect from denial of guilt to admission; and solicitation of a post-admission narrative from the suspect, in which the suspect provides an account of the crime that may be contaminated with non-public crime facts mentioned by the interrogator; (3) Defendant’s account of events demonstrating that during and subsequent to the August 17, 2011, polygraph examination, the FBI agents used coercive interrogation techniques that can lead to false confessions; and (4) “dispositional” risk factors related by Dr. William Sanders that render Defendant more susceptible to making a false confession. II. Analysis Federal Rule of Evidence 702 provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. Fed.R.Evid. 702. Pursuant to Rule 702, a court’s role as to expert testimony is that of a gatekeeper, in which it must assess the reasoning and methodology behind the expert’s opinion and determine whether it is both scientifically valid and relevant to the facts of the" }, { "docid": "2893412", "title": "", "text": "independent studies; or whether it unduly relies on anecdotal evidence. See Witherspoon v. Navajo Ref. Co., LP, 2005 WL 5988649 at *3 (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)). The Tenth Circuit stated the applicable standard in Norris v. Baxter Healthcare Corp.: Rule 702 requires the district court to “ensure that any and all scientific testimony or evidence is not only relevant, but reliable.” [Bitler v. A.O. Smith Corp., 391 F.3d 1114, 1120 (10th Cir.2004) ] (quoting Daubert, 509 U.S. at 589, 113 S.Ct. 2786). This obligation involves a two-part inquiry. Id. “[A] district court must [first] determine if the expert’s proffered testimony ... has ‘a reliable basis in the knowledge and experience of his [or her] discipline.’” Id. (quoting Daubert, 509 U.S. at 592, 113 S.Ct. 2786). In making this determination, the district court must decide “whether the reasoning or methodology underlying the testimony is scientifically valid.... ” Id. (quoting Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786). Second, the district court must further inquire into whether proposed testimony is sufficiently “relevant to the task at hand.” Daubert, 509 U.S. at 597, 113 S.Ct. 2786.... 397 F.3d 878, 883-84 (10th Cir.2005) (footnote omitted). “The second inquiry is related to the first. Under the relevance prong of the Daubert analysis, the court must ensure that the proposed expert testimony logically advances a material aspect of the case.... The evidence must have a valid scientific connection to the disputed facts in the case.” Norris v. Baxter Healthcare Corp., 397 F.3d at 884 n. 2 (citing Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir.1995) (on remand from the Supreme Court); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 591, 113 S.Ct. 2786). If the expert’s proffered testimony fails on the first prong, the Court does not reach the second prong. See Norris v. Baxter Healthcare Corp., 397 F.3d at 884. In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the Supreme Court expanded the rules under Daubert v. Merrell Dow" }, { "docid": "1657057", "title": "", "text": "reasoning or methodology underlying the testimony is scientifically valid.... ” Id. (quoting Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786). Second, the district .court must further inquire into whether proposed testimony is sufficiently “relevant to the task at hand.” Daubert, 509 U.S. at 597, 113 S.Ct. 2786. 397 F.3d 878, 883-84 (10th Cir.2005) (footnote omitted). “The second inquiry is related to the first. Under the relevance prong of the Daubert analysis, the court must ensure that the proposed expert testimony logically advances a material aspect of the case.... The evidence must have a valid scientific connection to the disputed facts in the case.” Norris v. Baxter Healthcare Corp., 397 F.3d at 884 n. 2 (citing Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir.1995) (on remand from the Supreme Court), and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 591, 113 S.Ct. 2786). If the expert’s proffered testimony fails on the first prong, the court does not reach the second prong. See Norris v. Baxter Healthcare Corp., 397 F.3d at 884. In conducting its review under Daubert v. Merrell Dow Pharmaceuticals, Inc., the court must focus generally on “principles and methodologies, and not on the conclusions generated.” Armeanu v. Bridgestone/Firestone N. Am., Tire, LLC, No. CIV 05-0619 JB/DJS, 2006 WL 4060665 at *11 (D.N.M.) (Browning, J.) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 595, 113 S.Ct. 2786). “Despite this focus on methodology, ‘an expert’s conclusions are not immune from scrutiny ... and the court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Armeanu v. Bridgestone/Firestone N. Am., Tire, LLC, 2006 WL 4060665 at *11 (internal quotation marks and bracket omitted). The proponent of the expert’s opinion testimony bears the burden of establishing that the expert is qualified, that the methodology he or she uses to support his or her opinions is reliable, and that his or her opinion fits the facts of the case and thus will be helpful to the jury. See Norris v. Baxter Healthcare Corp., 397 F.3d at 881. As" }, { "docid": "3680660", "title": "", "text": "or evidence is not only relevant, but reliable.” [Bitler v. A.O. Smith Corp., 391 F.3d 1114, 1120 (10th Cir.2004)] (quoting Daubert, 509 U.S. at 589, 113 S.Ct. 2786). This obligation involves a two-part inquiry. Id. “[A] district court must [first] determine if the expert’s proffered testimony ... has ‘a reliable basis in the knowledge and experience of his [or her] discipline.’” Id. (quoting Daubert, 509 U.S. at 592, 113 S.Ct. 2786). In making this determination, the district court must decide “whether the reasoning or methodology underlying the testimony is scientifically valid.... ” Id. (quoting Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786). Second, the district court must further inquire into whether proposed testimony is sufficiently “relevant to the task at hand.” Daubert, 509 U.S. at 597, 113 S.Ct. 2786.... 397 F.3d 878, 883-84 (10th Cir.2005) (footnote omitted). “The second inquiry is related to the first. Under the relevance prong of the Daubert analysis, the court must ensure that the proposed expert testimony logically advances a material aspect of the case.... The evidence must have a valid scientific connection to the disputed facts in the case.” Norris v. Baxter Healthcare Corp., 397 F.3d at 884 n. 2 (citing Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir.1995) (on remand from the Supreme Court), and (Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 591, 113 S.Ct. 2786)). If the expert’s proffered testimony fails on the first prong, the court does not reach the second prong. See Norris v. Baxter Healthcare Corp., 397 F.3d at 884. In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the Supreme Court expanded the rules under Daubert v. Merrell Dow Pharm., Inc., to non-scientific expert testimony. See 526 U.S. at 141, 119 S.Ct. 1167 (“We conclude that Daubert’s general holding — setting forth the trial judge’s general ‘gatekeeping’ obligation — applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.”). The Supreme Court recognized in Kumho Tire Co. v. Carmichael that the factors from Daubert v." }, { "docid": "1656458", "title": "", "text": "Benally. It argues that this testimony encroaches on the jury’s vital and exclusive function to make credibility determinations, and thus will not assist the trier of fact as rule 702 requires. The United States thus asks the Court to exclude Dr. Roll’s testimony. Ganadonegro contends that Dr. Roll’s testimony is relevant and admissible, because the phenomenon of false confession is not well known to the general public and few people understand the circumstances which could lead someone to falsely testify to a crime he or she did not commit. Ganadonegro argues that Dr. Roll’s proffered testimony is admissible, because evidence concerning the physical and psychological environment that yielded the confession can be of substantial relevance to the ultimate factual issue of a defendant’s guilt or innocence. He argues that, as long as the expert witness evaluates the defendant and describes the psychological circumstances which could give rise to his suggestibility, without opining that the defendant was not telling the truth when he made incriminating statements, the proffered testimony is admissible. Rule 702 requires the trial court to “determine whether the expert is proposing to testify to (1) scientific, technical, or other specialized knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” United States v. Muldrow, 19 F.3d at 1337. In its role of gatekeeper, a court must assess the reasoning and methodology underlying an expert’s opinion, and determine whether it is both scientifically valid and relevant to the facts of the ease, i.e., whether it is helpful to the trier of fact. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 594-95, 113 S.Ct. 2786. “The second inquiry is related to the first. Under the relevance prong of the Daubert analysis, the court must ensure that the proposed expert testimony logically advances a material aspect of the case.... The evidence must have a valid scientific connection to the disputed facts in the case.” Norris v. Baxter Healthcare Corp., 397 F.3d at 884 n. 2 (citation omitted). Several circuit courts have addressed the exclusion of expert testimony regarding the reliability of the" }, { "docid": "7807859", "title": "", "text": "ORDER McDADE, District Judge. Before the Court is the Government’s Motion to Preclude Dr. Ofshe’s Testimony at Trial [Doc. # 164]. Dr. Richard Ofshe is a social psychologist operating in the field of coercive police interrogation techniques and the phenomenon of false or coerced confessions. He is prepared to testify that experts in his field agree that false confessions exist, that individuals can be coerced into giving false confessions, and that there exist identifiable coercive police interrogation techniques which are likely to produce false confessions. At Defendant’s first trial, the district court rejected Dr. Ofshe’s proffered testimony under Fed.R.Evid. 702. However, in United States v. Hall, 93 F.3d 1337, 1344-45 (7th Cir.1996), the Seventh Circuit vacated Defendant’s conviction and remanded the ease to this Court to correct the prior court’s “failure to conduct a full Daubert inquiry, applying the correct legal standards under Rule 702.” Pursuant to this directive, the Court held an extensive Rule 104(a) hearing to determine the admissibility of Dr. Ofshe’s expert testimony. The Government postulates that Defendant must show a scientific basis for Dr. Ofshe’s expert opinion because it is based upon “scientific [] knowledge” under Rule 702. Conversely, Defendant contends that Dr. Ofshe’s expert testimony is derived from a body of “specialized knowledge” under Rule 702 whose validity should not be analyzed under the Daubert standard. This case raises a rather perplexing question: to what extent, if any, does Daubert apply to “soft” sciences such as social psychology? Scientifíc v. Specialized Knowledge In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 581, 113 S.Ct. 2786, 2791, 125 L.Ed.2d 469 (1993), the Supreme Court determined the proper standard “for admitting expert scientific testimony in a federal trial.” The Court rejected the Frye “general acceptance” test for the more liberal standard embodied in Fed.R.Evid. 702 that the expert need only testify to “(1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” Daubert, 509 U.S. at 592, 113 S.Ct. at 2796. The Court stated that in order to “qualify as ‘scientific knowledge,’ an inference or assertion must" }, { "docid": "1656439", "title": "", "text": "Id. (quoting Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786) Second, the district court must further inquire into whether proposed testimony is sufficiently “relevant to the task at hand.” Daubert, 509 U.S. at 597, 113 S.Ct. 2786.... 397 F.3d at 883-84 (footnote omitted). “The second inquiry is related to the first. Under the relevance prong of the Daubert analysis, the court must ensure that the proposed expert testimony logically advances a material aspect of the case.... The evidence must have a valid scientific connection to the disputed facts in the case.” Norris v. Baxter Healthcare Corp., 397 F.3d at 884 n. 2 (citing Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir.1995) (on remand from the Supreme Court), and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 591, 113 S.Ct. 2786). If the expert’s proffered testimony fails on the first prong, the court does not reach the second prong. See Norris v. Baxter Healthcare Corp., 397 F.3d at 884. In conducting its review under Daubert v. Merrell Dow Pharmaceuticals, Inc., the court must focus generally on “principles and methodologies, and not on the conclusions generated.” Armeanu v. Bridgestone/Firestone N. Am., Tire, LLC, No. CIV 05-0619 JB/DJS, 2006 WL 4060665, at * 11 (D.N.M.)(Browning, J.)(citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 595, 113 S.Ct. 2786). “Despite this focus on methodology, ‘an expert’s conclusions are not immune from scrutiny ... and the court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Armeanu v. Bridgestone/Firestone N. Am., Tire, LLC, 2006 WL 4060665, at *11 (internal quotation marks and bracket omitted). The proponent of the expert’s opinion testimony bears the burden of establishing that the expert is qualified, that the methodology he or she uses to support his or her opinions is reliable, and that his or her opinion fits the facts of the case and thus will be helpful to the jury. See Norris v. Baxter Healthcare Corp., 397 F.3d at 881. As the Tenth Circuit noted in Hollander v. Sandoz Pharmaceuticals Corp., 289 F.3d 1193" }, { "docid": "1656459", "title": "", "text": "court to “determine whether the expert is proposing to testify to (1) scientific, technical, or other specialized knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” United States v. Muldrow, 19 F.3d at 1337. In its role of gatekeeper, a court must assess the reasoning and methodology underlying an expert’s opinion, and determine whether it is both scientifically valid and relevant to the facts of the ease, i.e., whether it is helpful to the trier of fact. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 594-95, 113 S.Ct. 2786. “The second inquiry is related to the first. Under the relevance prong of the Daubert analysis, the court must ensure that the proposed expert testimony logically advances a material aspect of the case.... The evidence must have a valid scientific connection to the disputed facts in the case.” Norris v. Baxter Healthcare Corp., 397 F.3d at 884 n. 2 (citation omitted). Several circuit courts have addressed the exclusion of expert testimony regarding the reliability of the defendant’s admissions or the defendant’s susceptibility to false admissions, see United States v. Shay, 57 F.3d 126; United States v. Hall, 93 F.3d 1337, and the Tenth Circuit discusses these cases in its opinions addressing the issue, see United States v. Adams, 271 F.3d at 1245 (“Only two circuit courts have dealt with the question of the admissibility of expert testimony concerning credibility, and both, under the facts of those cases and the manner of presentation, concluded that the respective trial court committed error in excluding such testimony.” (citing United States v. Shay and United States v. Hall)). In United States v. Shay, the United States Court of Appeals for the First Circuit addressed whether the district court “properly prevented the defendant from supporting his argument [that the incriminating statements he made were unreliable and should be disregarded] by calling a psychiatrist to testify that he suffered from a mental disorder that causes its victims to make false and grandiose statements without regard to the consequences.” 57 F.3d at 128. The defendant offered an expert" }, { "docid": "16858144", "title": "", "text": "understand the evidence or to determine a fact in issue,” an expert “may testify thereto.” Fed.R.Evid. 702. “Expert testimony is admissible pursuant to Rule 702 if it is both relevant and reliable.” Elsayed Mukhtar v. California State University, Hayward, 299 F.3d 1053, 1063(9th Cir.2002) (citing Daubert, 509 U.S. at 589, 113 S.Ct. 2786). The trial court acts as a “gatekeeper” to exclude expert testimony that does not meet the relevancy and reliability threshold requirements. Elsayed Mukhtar, 299 F.3d at 1063. “A trial court not only has broad latitude in determining whether an expert’s testimony is reliable, but also in deciding how to determine the testimony’s reliability.” Id. at 1064(citations omitted); see also Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1017 (9th Cir.2004) (“[F]ar from requiring trial judges to mechanically apply the Daubert factors ... Kumho Tire heavily emphasizes that judges are entitled to broad discretion when discharging their gatekeeping function.”) (quoting United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir.2000)). “It is the proponent of the expert who has the burden of proving admissibility.” Lust v. Merrell Dow Pharms., Inc., 89 F.3d 594, 598 (9th Cir.1996); see Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1316 (9th Cir.1995) (“Daubert II”) (“[T]he party presenting the expert must show that the expert’s findings are based on sound science, and this will require some objective, independent validation of the expert’s methodology.”). As to the first prong of Daubert, relevance means that the evidence will assist the trier of fact to understand or determine a fact in issue. Daubert, 509 U.S. at 591-92, 113 S.Ct. 2786. The evidence must logically advance a material aspect of the party’s case. Daubert II, 43 F.3d at 1315. “Encompassed in the determination of whether expert testimony is relevant is whether it is helpful to the jury, which is the ‘central concern’ of Rule 702.” El-sayed Mukhtar, 299 F.3d at 1063 n. 7 (citation omitted). “Daubert [also] adds that the gatekeeping inquiry must be ‘tied to the facts’ of a particular ‘case.’ ” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150," }, { "docid": "8251633", "title": "", "text": "affidavits from their experts in advance of the hearing. During the hearing, held on June 16, 2008, Dr. Shoemaker was subjected to cross-examination, followed by the testimony of Dr. S. Michael Phillips. Based on this testimony, as well as the parties’ prior submissions, the Court makes the following findings of fact and conclusions of law. ANALYSIS I. GOVERNING LEGAL STANDARDS The admissibility of expert testimony in federal courts is governed by Federal Rule of Evidence 702, which provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert ... may testify thereto in the form of an opinion or otherwise. As explained by the Supreme Court, under Rule 702, “the trial judge must determine at the outset ... whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The first prong of the analysis “establishes a standard of evidentiary reliability,” id. at 590, 113 S.Ct. 2786, while the second prong “goes primarily to relevance.” Id. at 591, 113 S.Ct. 2786. Testimony as to the nature, cause, and extent of plaintiffs’ symptoms is clearly relevant to the final determination of liability and damages. Furthermore, such testimony involves medical and scientific matters which are beyond the ken of the average juror. Thus, the only inquiry is whether Dr. Shoemaker’s testimony meets the standard for evidentiary reliability under the first prong of the Daubert analysis. In performing its “gatekeeping” role, “the district court must focus ‘solely on principles and methodology, not on the conclusions that they generate.’ ” Ambrosini v. Labarraque, 101 F.3d 129, 133 (D.C.Cir.1996) (quoting Daubert, 509 U.S. at 595, 113 S.Ct. 2786). In so doing, “the district court must engage in ‘a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be" }, { "docid": "1656438", "title": "", "text": "of litigation or as the result of independent studies; or whether it unduly relies on anecdotal evidence. See Witherspoon v. Navajo Ref. Co., LP, 2005 WL 5988649, at *3 (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)). The United States Court of Appeals for the Tenth Circuit stated the applicable standard in Norris v. Baxter Healthcare Corp.: Rule 702 requires the district court to “ensure that any and all scientific testimony or evidence is not only relevant, but reliable.” [Bitter v. A.O. Smith Corp., 391 F.3d 1114, 1120 (10th Cir. 2004) ] (quoting Daubert, 509 U.S. at 589, 113 S.Ct. 2786) This obligation involves a two-part inquiry. Id. “[A] district court must [first] determine if the expert’s proffered testimony ... has ‘a reliable basis in the knowledge and experience of his [or her] discipline.’ ” Id. (quoting Daubert, 509 U.S. at 592, 113 S.Ct. 2786.) In making this determination, the district court must decide “whether the reasoning or methodology underlying the testimony is scientifically valid.... ” Id. (quoting Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786) Second, the district court must further inquire into whether proposed testimony is sufficiently “relevant to the task at hand.” Daubert, 509 U.S. at 597, 113 S.Ct. 2786.... 397 F.3d at 883-84 (footnote omitted). “The second inquiry is related to the first. Under the relevance prong of the Daubert analysis, the court must ensure that the proposed expert testimony logically advances a material aspect of the case.... The evidence must have a valid scientific connection to the disputed facts in the case.” Norris v. Baxter Healthcare Corp., 397 F.3d at 884 n. 2 (citing Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir.1995) (on remand from the Supreme Court), and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 591, 113 S.Ct. 2786). If the expert’s proffered testimony fails on the first prong, the court does not reach the second prong. See Norris v. Baxter Healthcare Corp., 397 F.3d at 884. In conducting its review under Daubert v. Merrell Dow Pharmaceuticals, Inc., the" }, { "docid": "2893430", "title": "", "text": "is reliable, relevant, and the danger of undue prejudice does not substantially outweigh its probative value. As such, the Court will deny the rest of the Motion and will permit Starr’s remaining testimony that does not concern NSSI Disorder. I. THE COURT WILL EXCLUDE STARR’S TESTIMONY CONCERNING NSSI DISORDER, BECAUSE IT IS IRRELEVANT. The Court will prohibit Starr from testifying about NSSI Disorder, because the testimony is irrelevant to this case. Rule 702 states that an expert witness may testify if, among other things, “the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702(a). The Tenth Circuit has described this requirement by stating that “proposed testimony is sufficiently ‘relevant to the task at hand.’ ” Norris v. Baxter Healthcare Corp., 397 F.3d at 884 (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 579, 113 S.Ct. 2786). This requirement ensures “that the proposed expert testimony logically advances a material aspect of the case” and that it has “a valid scientific connection to the disputed facts in the case.” Norris v. Baxter Healthcare Corp., 397 F.3d at 884 n. 2. Here, testimony about NSSI Disorder does not have any connection to the facts in the case. The one article that the United States submitted to the Court, which deals with NSSI Disorder, states a person must have “intentionally caused damage to his or her body on five or more days” in the last year to be diagnosed with NSSI Disorder. NSSI Disorder at 2. The United States has not, however, presented any evidence or indicated that D. Chapman has engaged in self-harm on more than one occasion. To the contrary, the United States noted that D. Chapman will testify that she does not engage in self-injury, but that she did scratch herself on one occasion. See Tr. at 20:20-21:18 (Mott, Court). Based on this representation by the United States and based on the articles provided to the Court by the United States, there is no factual basis for concluding that D. Chapman could" }, { "docid": "23567180", "title": "", "text": "takes the stand to protect his Fourth Amendment rights at a pretrial suppression hearing, his testimony cannot later be used against him to prove guilt.”) (citing Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)). Moreover, Redlightning had not told Dr. Leo, who did not interview Redlightning but rather based his opinions on what counsel told him, that any promises or coercive tactics had occurred. The district court identified the correct legal standard for determining the admissibility of expert testimony: Federal Rule of Evidence 702 and the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Edüd 469 (1993). The district court’s application of the expert-testimony standard was logical, plausible, and supported by inferences that may be drawn from the record. If expert testimony will “assist the trier of fact to understand the evidence or to determine a fact in issue,” such testimony is admissible so long as “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Fed.R.Evid. 702. The trial judge must perform a gatekeeping function to ensure that the expert’s proffered testimony is both reliable and relevant. See United States v. Freeman, 498 F.3d 893, 901 (9th Cir.2007). The gatekeeping function requires that the judge assess whether “the reasoning or methodology underlying the testimony is scientifically valid,” and “whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93,113 S.Ct. 2786. Here, Redlightning did not sufficiently show how Dr. Leo’s testimony would have applied to the facts of his case. Perhaps most importantly, Dr. Leo testified that nothing in the record, including the FBI reports of the October 2 interview and the testimony at the pretrial suppression hearing, showed that any coercive tactic that may lead to a false confession was used when the FBI questioned Redlightning. To be relevant, an expert’s opinion must be based on" }, { "docid": "23567179", "title": "", "text": "risk of a false confession. On review for abuse of discretion, we should not be quick to fault the district court for adopting the position presented by the expert himself. The district court was correct to require a showing of foundation for the proffered expert testimony. In the course of the Daubert hearing, Dr. Leo said that nothing in the record supported his theory of false confession. It was thereafter not unreasonable for the district court to exclude Dr. Leo’s proposed expert testimony, particularly where the record affirmatively showed no probability that any technique had been used in interrogation that could support Dr. Leo’s theory of a false confession, and where Redlightning’s confession followed soon after the start of the polygraph examination questioning. Agent Lauer had said in his report what he recalled, and nothing therein suggested that he had used coercive tactics or promises of leniency. If Redlightning wanted to dispute this, he could have testified himself on that score. See United States v. Beltran-Gutierrez, 19 F.3d 1287, 1289 (9th Cir.1994) (“[W]hen a defendant takes the stand to protect his Fourth Amendment rights at a pretrial suppression hearing, his testimony cannot later be used against him to prove guilt.”) (citing Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)). Moreover, Redlightning had not told Dr. Leo, who did not interview Redlightning but rather based his opinions on what counsel told him, that any promises or coercive tactics had occurred. The district court identified the correct legal standard for determining the admissibility of expert testimony: Federal Rule of Evidence 702 and the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Edüd 469 (1993). The district court’s application of the expert-testimony standard was logical, plausible, and supported by inferences that may be drawn from the record. If expert testimony will “assist the trier of fact to understand the evidence or to determine a fact in issue,” such testimony is admissible so long as “(1) the testimony is based upon sufficient facts or data, (2) the testimony" }, { "docid": "1657056", "title": "", "text": "effect at issue; whether the opinion was reached for the purposes of litigation or as the result of independent studies; or whether it unduly relies on anecdotal evidence. See Witherspoon v. Navajo Ref. Co., LP, 2005 WL 5988649 at *3 (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)). The United States Court of Appeals for the Tenth Circuit stated the applicable standard in Norris v. Baxter Healthcare Corp.: Rule 702 requires the district court to “ensure that any and all scientific testimony or evidence is not only relevant, but reliable.” [Bitler v. A.O. Smith Corp., 391 F.3d 1114, 1120 (10th Cir. 2004)] (quoting Daubert, 509 U.S. at 589, 113 S.Ct. 2786). This obligation involves a two-part inquiry. Id. “[A] district court must [first] determine if the expert’s proffered testimony ... has ‘a reliable basis in the knowledge and experience of his [or her] discipline.’ ” Id. (quoting Daubert, 509 U.S. at 592, 113 S.Ct. 2786). In making this determination, the district court must decide “whether the reasoning or methodology underlying the testimony is scientifically valid.... ” Id. (quoting Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786). Second, the district .court must further inquire into whether proposed testimony is sufficiently “relevant to the task at hand.” Daubert, 509 U.S. at 597, 113 S.Ct. 2786. 397 F.3d 878, 883-84 (10th Cir.2005) (footnote omitted). “The second inquiry is related to the first. Under the relevance prong of the Daubert analysis, the court must ensure that the proposed expert testimony logically advances a material aspect of the case.... The evidence must have a valid scientific connection to the disputed facts in the case.” Norris v. Baxter Healthcare Corp., 397 F.3d at 884 n. 2 (citing Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir.1995) (on remand from the Supreme Court), and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 591, 113 S.Ct. 2786). If the expert’s proffered testimony fails on the first prong, the court does not reach the second prong. See Norris v. Baxter Healthcare Corp., 397 F.3d at 884." }, { "docid": "15716103", "title": "", "text": "significant published, peer-reviewed epidemiological studies that were considered by the district court. In re Breast Implant Litig., 11 F.Supp.2d 1217, 1227 (D.Colo.1998); Aplt. App., Vol. Ill, at 821 (district court’s, oral order incorporating the studies and articles discussed in In re Breast Implant Litig., 11 F.Supp.2d at 1231-32). . The district court did not specifically state in its oral order that it was conducting a Daubert hearing. The district court did say, as part of its order, that \"under Daubert, in Tenth Circuit law, the court must make the determination initially if there is a significant showing of causation based on some evidence.” Aplt.App., Vol. Ill, at 827. Additionally, in determining whether there was a genuine issue of material fact to overcome Baxter's summary judgment motion, it was necessary for the district court to assess the admissibility of Plaintiffs experts under Dau-bert. The court stated that \"Dr. Vasey’s opinions, based on his report, appear to be based on matters which do not satisfy the scientific requirements.” The court further stated that \"Dr. Espinoza suffers from the same problem.” Id. at 835-36. . The second inquiry is related to the first. Under the relevance prong of the Daubert analysis, the court must ensure that the proposed expert testimony logically advances a material aspect of the case. Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir.1995) (on remand). The evidence must have a valid scientific connection to the disputed facts in the case. Daubert, 509 U.S. at 591, 113 S.Ct. 2786. . Additionally, even if an expert's opinion or evidence is relevant and admissible, if \"insufficient to allow a reasonable juror to conclude that the position more likely than not is true,” it may be the basis for a grant of summary judgment. Daubert, 509 U.S. at 596, 113 S.Ct. 2786. . We note that the district court was not the first court to hold that Dr. Vasey’s and Dr. Espinoza’s opinions did not meet the Daubert test for expert testimony. See Bushore v. Dow Corning-Wright Corp., No. 92-344-CIV-T-26C, 1999 WL 1116920, at *7 (M.D.Fla. Nov.15, 1999) (citing Kelley," }, { "docid": "2893413", "title": "", "text": "inquire into whether proposed testimony is sufficiently “relevant to the task at hand.” Daubert, 509 U.S. at 597, 113 S.Ct. 2786.... 397 F.3d 878, 883-84 (10th Cir.2005) (footnote omitted). “The second inquiry is related to the first. Under the relevance prong of the Daubert analysis, the court must ensure that the proposed expert testimony logically advances a material aspect of the case.... The evidence must have a valid scientific connection to the disputed facts in the case.” Norris v. Baxter Healthcare Corp., 397 F.3d at 884 n. 2 (citing Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir.1995) (on remand from the Supreme Court); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 591, 113 S.Ct. 2786). If the expert’s proffered testimony fails on the first prong, the Court does not reach the second prong. See Norris v. Baxter Healthcare Corp., 397 F.3d at 884. In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the Supreme Court expanded the rules under Daubert v. Merrell Dow Pharm., Inc., to non-scientific expert testimony. See 526 U.S. at 141, 119 S.Ct. 1167 (“We conclude that Daubert’s general holding — setting forth the trial judge’s general ‘gatekeep-ing’ obligation — applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.”). The Supreme Court recognized in Kumho Tire Co. v. Carmichael that the factors from Daubert v. Merrell Dow Pharm., Inc., will not apply to all cases: Our emphasis on the word ‘may’ thus reflects Daubert’s description of the Rule 702 inquiry as a flexible one. Daubert makes clear that the factors it mentions do not constitute a definitive checklist or test. And Daubert adds that the gatekeeping inquiry must be tied to the facts of a particular case. Kumho Tire Co. v. Carmichael, 526 U.S. at 150, 119 S.Ct. 1167 (internal quotation marks omitted). In conducting its review under Daubert v. Merrell Dow Pharmaceuticals, Inc., the court must focus generally on “principles and methodologies, and not on the conclusions generated.” Armeanu v. Bridgestone/Firestone N. Am.," }, { "docid": "15716104", "title": "", "text": "the same problem.” Id. at 835-36. . The second inquiry is related to the first. Under the relevance prong of the Daubert analysis, the court must ensure that the proposed expert testimony logically advances a material aspect of the case. Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir.1995) (on remand). The evidence must have a valid scientific connection to the disputed facts in the case. Daubert, 509 U.S. at 591, 113 S.Ct. 2786. . Additionally, even if an expert's opinion or evidence is relevant and admissible, if \"insufficient to allow a reasonable juror to conclude that the position more likely than not is true,” it may be the basis for a grant of summary judgment. Daubert, 509 U.S. at 596, 113 S.Ct. 2786. . We note that the district court was not the first court to hold that Dr. Vasey’s and Dr. Espinoza’s opinions did not meet the Daubert test for expert testimony. See Bushore v. Dow Corning-Wright Corp., No. 92-344-CIV-T-26C, 1999 WL 1116920, at *7 (M.D.Fla. Nov.15, 1999) (citing Kelley, 957 F.Supp. at 882). . We need not address the question of whether epidemiological studies showing a relative risk between 1.0 and 2.0 for developing symptoms of connective tissue disease from silicone breast implants are admissible evidence. The district court did not need to reach this issue because it excluded the expert opinions of Doctors Vasey and Espinoza. The district court excluded the experts' opinions not based on the epidemiological studies but based on their failure to address or discuss the prevailing contrary views out there. . Non-epidemiological studies, \"singly or in combination[,]” are \"not capable of proving causation in human beings in the face of [an] overwhelming body of contradictory epidemiological evidence.” Raynor, 104 F.3d at 1374; see also Elkins v. Richardson-Merrell, Inc., 8 F.3d 1068, 1073 (6th Cir.1993); Daubert, 509 U.S. at 592, 113 S.Ct. 2786. . Prior to 1986, the statute of limitations for products liability claims based upon strict liability and/or negligence in Colorado was three years after the claim for relief arose. In 1986, the statute was amended to a" }, { "docid": "16858145", "title": "", "text": "burden of proving admissibility.” Lust v. Merrell Dow Pharms., Inc., 89 F.3d 594, 598 (9th Cir.1996); see Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1316 (9th Cir.1995) (“Daubert II”) (“[T]he party presenting the expert must show that the expert’s findings are based on sound science, and this will require some objective, independent validation of the expert’s methodology.”). As to the first prong of Daubert, relevance means that the evidence will assist the trier of fact to understand or determine a fact in issue. Daubert, 509 U.S. at 591-92, 113 S.Ct. 2786. The evidence must logically advance a material aspect of the party’s case. Daubert II, 43 F.3d at 1315. “Encompassed in the determination of whether expert testimony is relevant is whether it is helpful to the jury, which is the ‘central concern’ of Rule 702.” El-sayed Mukhtar, 299 F.3d at 1063 n. 7 (citation omitted). “Daubert [also] adds that the gatekeeping inquiry must be ‘tied to the facts’ of a particular ‘case.’ ” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (quoting Daubert, 509 U.S. at 591, 113 S.Ct. 2786). The proposed expert testimony must satisfy a second hurdle, reliability, before it can be admitted. “The trial court must [also] act as a ‘gatekeeper’ to exclude ‘junk science’ that does not meet Rule 702’s reliability standards by making a preliminary determination that the expert’s testimony is reliable.” Elsayed Mukhtar, 299 F.3d at 1063. “Rule 702 demands that expert testimony relate to scientific, technical or other specialized knowledge, which does not include unsubstantiated speculation and subjective beliefs.” Diviero v. Uniroyal Goodrich Tire Co., 114 F.3d 851, 853 (9th Cir.1997) (citing Daubert, 509 U.S. at 590, 113 S.Ct. 2786). Daubert provides the following non-exclusive list of factors to guide the assess ment of the reliability of scientific evidence: (1) whether a scientific theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error and the existence and maintenance of standards controlling" }, { "docid": "3680661", "title": "", "text": "valid scientific connection to the disputed facts in the case.” Norris v. Baxter Healthcare Corp., 397 F.3d at 884 n. 2 (citing Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir.1995) (on remand from the Supreme Court), and (Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 591, 113 S.Ct. 2786)). If the expert’s proffered testimony fails on the first prong, the court does not reach the second prong. See Norris v. Baxter Healthcare Corp., 397 F.3d at 884. In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the Supreme Court expanded the rules under Daubert v. Merrell Dow Pharm., Inc., to non-scientific expert testimony. See 526 U.S. at 141, 119 S.Ct. 1167 (“We conclude that Daubert’s general holding — setting forth the trial judge’s general ‘gatekeeping’ obligation — applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.”). The Supreme Court recognized in Kumho Tire Co. v. Carmichael that the factors from Daubert v. Merrell Dow Pharm., Inc., will not apply to all cases: Our emphasis on the word ‘ma/ thus reflects Daubert’s description of the Rule 702 inquiry as a flexible one. Dau-bert makes clear that the factors it mentions do not constitute a definitive checklist or test. And Daubert adds that the gatekeeping inquiry must be tied to the facts of a particular case. Kumho Tire Co. v. Carmichael, 526 U.S. at 150, 119 S.Ct. 1167 (internal quotation marks omitted). In conducting its review under Daubert v. Merrell Dow Pharmaceuticals, Inc., the court must focus generally on “principles and methodologies, and not on the conclusions generated.” Armeanu v. Bridgestone/Firestone N. Am., Tire, LLC, No. CIV 05-0619, 2006 WL 4060665 JB/DJS, at *11 (D.N.M. Sept. 26, 2006) (Browning, J.)(citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 595, 113 S.Ct. 2786). “Despite this focus on methodology, ‘an expert’s conclusions are not immune from scrutiny ... and the court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Armeanu" } ]

[ { "docid": "22541180", "title": "", "text": "the process by which he reached the conclusions of his order, including the manner and extent of his study of the record and his consultation with subordinates. His testimony shows that he dealt with the enormous record in a manner not unlike the practice of judges in similar situations, and that he held various conferences with the examiner who heard the evidence. Much was made of his disregard of a memorandum from one of his officials who, on reading the proposed order, urged considerations favorable to the market agencies. But the short of the business is that the Secretary should never have been subjected to this examination. The proceeding before the Secretary “has a quality resembling that of a judicial proceeding.” Morgan v. United States, 298 U. S. 468, 480. Such an examination of a judge would be destructive of judicial responsibility. We have explicitly held in this very litigation that “it was not the function of the court to probe the mental processes of the Secretary.” 304 U. S. 1,18. Just as a judge cannot be subjected to such a scrutiny, compare Fayerweather v. Ritch, 195 U. S. 276, 306-07, so the integrity of.the administrative process must be equally respected. See Chicago, B. & Q. Ry. Co. v. Babcock, 204 U. S. 585, 593. It will bear repeating that although the administrative process has had a different development and pursues somewhat different ways from those of courts, they are to be deemed collaborative instru-mentalities of justice and the appropriate independence of each should be respected by the other. United States v. Morgan, 307 U. S. 183, 191. Reversed. Mr. Justice Reed did not participate in the consideration or decision of this case. Attention is called to the title page of the tentative findings, on which appeared, opposite the docket number of the case and the names of the formal parties, the words “Tentative Findings of Fact, Conclusions and Proposed Order, issued as of June 14, 1933.” This formal caption is not an unnatural description of the starting point of the Secretary’s new inquiry. It clearly is not descriptive of" } ]

[ { "docid": "21337158", "title": "", "text": "Co. v. Babcock, 204 U.S. 585, 27 S.Ct. 326, 51 L.Ed. 636 (1907). The rule has been applied to federal administrative officials who act in a quasi-judicial capacity, United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1941); Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 773, 82 L.Ed. 1129 (1938); DeCambra v. Rogers, 189 U.S. 119, 23 S.Ct. 519, 47 L.Ed. 734 (1903); Norris & Hirshberg v. Securities and Exchange Com’n, 82 U.S.App.D.C. 32, 163 F.2d 689, 693 (1947); National Labor Relations Board v. Air Associates, 121 F.2d 586 (2 Cir. 1941); Walled Lake Door Company v. United States, 31 F.R.D. 258 (E.D.Mich.S.D.1962). Although not urged on us by the Board, United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1941), is often cited as a leading case stating and applying the mental process rule. We do not construe the language of this so-called fourth Morgan case as proscribing, under all circumstances, the probing of mental processes, United States v. Morgan, supra, pp. 421-422 of 313 U.S., pp. 1004-1005 of 61 S.Ct., pp. 1435-1436 of 85 L.Ed. There, the Court, by Mr. Justice Frankfurter, said: “Over the Government’s objection the district court authorized the market agencies to take the deposition of the Secretary. The Secretary thereupon appeared in person at the trial. He was questioned at length regarding the process by which he reached the conclusions of his order, including the manner and extent of his study of the record and his consultation with subordinates. His testimony shows that he dealt with the enormous record in a manner not unlike the practice of judges in similar situations, and that he held various conferences with the examiner who heard the evidence. Much was made of his disregard of a memorandum from one of his officials who, on reading the proposed order, urged considerations favorable to the market agencies. But the short of the business is that the Secretary should never have been subjected to this examination. The proceeding before the Secretary ‘has a quality resembling that of a judicial proceeding.’" }, { "docid": "12971762", "title": "", "text": "Counsel’s office in reaching their conclusions prior to their official publication. A similar situation was discussed by the Supreme Court in United States v. Morgan, 1941, 313 U.S. 409, 421-422, 61 S.Ct. 999, 1004-1005, 85 L.Ed. 1429. The district court had required the Secretary of Agriculture to submit to questioning regarding the process by which he had reached the conclusion reflected in a particular order. The Court concluded that: “the short of the business is that the Secretary should never have been subjected to this examination. The proceeding before the Secretary ‘has a quality resembling that of a judicial proceeding’. Morgan, v. United States, 298 U.S. 468, 480, 56 S.Ct. 906, 911, 80 L.Ed. 1288. Such an examination of a judge would be destructive of judicial responsibility. We have explicitly held in this very litigation that ‘it was not the function of the court to probe the mental processes of the Secretary’. 304 U.S. 1, 18, 58 S.Ct. 773, 776, 82 L.Ed. 1129. Just as a judge cannot be subjected to such a scrutiny, compare Fayerweather v. Ritch, 195 U.S. 276, 306, 307, 25 S.Ct. 58, 67, 49 L.Ed. 193, so the integrity of the administrative process must be equally respected. See Chicago, B & O Ry. Co. v. Babcock, 204 U.S. 585, 593, 27 S.Ct. 326, 327, 51 L.Ed. 636. It will bear repeating that although the administrative process has had a different development and pursues somewhat different ways from those of courts, they are to be deemed collaborative instrumentalities of justice and the appropriate independence of each should be respected by the other.” The reasons for the rejection of any attempt to delve into the decision-making process of an administrative agency are even more imperative than those which induced the Supreme Court to condemn the investigation of the Secretary .of Agriculture. In the words of the Third Circuit: “The essence of the discussion of a common cause and the judgment ensuing upon that discussion must lie in freedom of expression. If those present during the discussion are aware that their sentiments, either tentative or final, may be revealed" }, { "docid": "657619", "title": "", "text": "at the trial. He was questioned at length regarding the process by which he reached the conclusions of his order, including the manner and extent of his study of the record and his consultation with subordinates. * * * [T]he short of the business is that the Secretary should never have been subjected to this examination. The proceeding before the Secretary ‘has a quality resembling that of a judicial proceeding.’ Morgan v. United States, 298 U.S. 468, 480 [56 S.Ct. 906, 911, 80 L.Ed. 1288]. Such an examination of a judge would be destructive of judicial responsibility. We have explicitly held in this very litigation that ‘it was not the function of the court to probe . the mental processes of the Secretary.’ 304 U.S. 1, 18 [58 S.Ct. 773, 776, 82 L.Ed. 1129]. Just as a judge cannot be subjected to such a scrutiny, compare Fayerweather v. Ritch, 195 U.S. 276, 306-307 [25 S.Ct. 58, 67, 49 L.Ed. 193] so the integrity of the administrative process must be equally respected. See Chicago, B. & Q. Ry. Co. v. Babcock, 204 U.S. 585, 593 [27 S. Ct. 326, 327, 51 L.Ed. 636].” United States v. Morgan, 313 U.S. 409, 421-422, 61 S.Ct. 999, 1004-1005 (1941). See also 2 K. Davis, Administrative Law § 11.05 (1958). We find no merit to appellee National Bank of Warren’s motion for double costs and attorney’s fees. The judgment of the District Court is affirmed." }, { "docid": "8268186", "title": "", "text": "the Morgan decisions, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288 (1935), 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129 (1938), 307 U.S. 183, 59 S.Ct. 795, 83 L.Ed. 1211 (1939), and 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1941). See also Fayerweather v. Ritch, 195 U.S. 276, 25 S.Ct. 58, 49 L.Ed. 193 (1904) and Chicago, B. & Q. Ry. Co. v. Babcock, 204 U.S. 585, 27 S.Ct. 326, 51 L.Ed. 636 (1906). To allow certain exemptions to these officers is not to provide them with a blanket immunity from testimony. Like any testimonial “privilege,” this one must be construed and applied with the greatest care for fear that it be misused or abused. And, indeed, the courts have been most scrupulous in delineating between protected and unprotected testimony on a case-by-ease basis. In various instances and circumstances, judges, jurors, justices of the peace, and referees have been compelled to testify. See Downey v. United States, 67 App.D. C. 192, 91 F.2d 223 (1937); Gore v. State, 22 Ala.App. 136, 114 So. 791, cert. den. Ex parte State ex rel. Attorney General, 217 Ala. 68, 114 So. 794 (1927); Hundley v. Commonwealth, 193 Va. 449, 69 S.E.2d 336 (1952); Beck v. Kulesza, 4 W.W.Harr. 559, 156 A. 346 (Del.1926). The essential line of demarcation appearing from the cases is that judicial and quasi-judicial officers may be compelled to testify only as to relevant matters of fact that do not probe into or compromise the mental processes employed in formulating the judgment in question. See the Morgan decisions, supra. Thus, even though a particular inquiry may be factually directed, it may still be objectionable if it invades upon an official’s good-faith decision-making prerogatives. It is apparent, however, that this doctrine does not exempt compulsory testimony as to all factual matters related to those prerogatives. II. Reviewing the cases, it is unquestionable that patent examiners perform quasi-judicial duties that merit the protection of the “mental processes” rule. See Butterworth v. United States, 112 U.S. 50, 5 S.Ct. 25, 28 L.Ed. 656 (1884); United States v. American Bell" }, { "docid": "10097385", "title": "", "text": "Commissioners of Anderson County, 1876, 16 Kan. 302. . School Dist. No. 39, Pottawatomie County v. Shelton, 1910, 26 Okl. 229, 109 p. 67; Honaker v. Board of Education, 1896, 42 W.Va. 170, 24 S.E. 544, 32 L.R.A. 413; McNolty v. Board of School Directors, 1899, 102 Wis. 261, 78 N.W. 439; but see, School District No. 25 of Jefferson County v. Stone, 1900, 14 Colo. App. 211, 59 P. 885, 887. . Thompson v. West, 1900, 59 Neb. 677, 82 N.W. 13, 49 L.R.A. 337; Nason v. Directors of Poor for Erie County, 1889, 126 Pa. 445, 17 A. 616. . 13 Am.Jur., Corporations § 948. . Cf. Columbia Research Corp. v. Schaffer, 2 Cir., 1958, 256 F.2d 677; G. J. Howard Co. v. Cassidy, D.C.E.D.N.Y. 1958, 162 F.Supp. 568, 574; Pinkus v. Reilly, D.C.D.N.J.1957, 157 F.Supp. 548. . The Hoover Commission commented upon such a review. Legal Services and Procedure, March 1955, by the Commission on Organization of the Executive Branch of the Government, at page 202: “In some agencies like the Interstate Commerce Commission, moreover, the record made by the hearing examiner is often subject to further review by other officers who have not heard the evidence, before the record is submitted to the agency for final decision. This practice tends to weaken the administrative process by diminishing the’ responsibility and status of the officer who conducts the hearing.” . Morgan v. United States, 1936, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288; Morgan v. United States, 1938, 304 U.S. 1, 18, 58 S.Ct. 773, 999, 82 L.Ed. 1129; United States v. Morgan, 1941, 313 U.S. 409, 422, 61 S.Ct. 999, 85 L.Ed. 1429; Norris & Hirshberg v. S. E. C., 1947, 82 U.S.App.D.C. 32, 163 E.2d 689, 693, cer-tiorari denied 333 U.S. 867, 68 S.Ct. 788, 92 L.Ed. 1145. . “In bearings * * * conducted pursuant to this section— “(a) There shall preside at the taking of evidence (1) the agency, (2) one or more members of the body which comprises the agency, or (3) one or more examiners appointed as provided * *" }, { "docid": "4509861", "title": "", "text": "and members of administrative boards — and judges — -are all human, and it is unreasonable to demand that any human process be absolutely flawless. The work-a-day world is no place for the perfectionist. Consequently, we find no merit in respondent’s contention. Besides objecting to the enforcement of the Board’s order, respondent has filed a motion for leave to adduce additional evidence of the trial examiner’s bias. The foregoing discussion is applicable to that motion, which is, therefore denied. We do not propose to turn a trial of the issues into a trial of the trial examiner. Respondent suggests that a reading of the Board’s decisions in other cases shows that the Board “has created an operating presumption of non-credibility” of employers’ witnesses, and has employed that presumption in the instant case. That suggestion is obviously one which we have no right to entertain. Congress has as signed to the Board, and not to the courts, the function of passing on the credibility of witnesses. N. L. R. B. v. Link-Belt Co., 311 U.S. 584, 597, 61 S.Ct. 358, 85 L.Ed. 368. And the Supreme Court, during a period of more than thirty years, has often condemned, as both an impractical and an unwise judicial undertaking, the “probing of the mental processes” of officials engaged in reaching decisions, pursuant to statute, on the basis of evidence presented to them. Fayerweather v. Ritch, 1904, 195 U.S. 276, 306, 307, 25 S.Ct. 58, 49 L.Ed. 193; Chicago B. & Q. R. Co. v. Babcock, 1907, 204 U.S. 585, 593, 27 S.Ct. 326, 51 L.Ed. 636 ; Morgan v. United States, 1938, 304 U.S. 1, 18, 58 S.Ct. 773, 999, 82 L.Ed. 1129; United States and Secretary of Agriculture v. Morgan, May 26, 1941, 61 S.Ct. 999, 85 L.Ed. —; cf. N. L. R. B. v. Ford Motor Company, 9 Cir., 1941, 118 F.2d 766; DeCambra v. Rogers, 1903, 189 U.S. 119, 122, 23 S.Ct. 519, 47 L.Ed. 734; United States ex rel. West v. Hitchcock, 1907, 205 U.S. 80, 85, 86, 27 S.Ct. 423, 51 L.Ed. 718; United States v. Chemical Foundation," }, { "docid": "21337157", "title": "", "text": "den. 328 U.S. 866, 66 S.Ct. 1372, 90 L.Ed. 1636 (1946) are also not on point. They, too, relate only to evidence not adduced at the representation hearing which was then available. Utica Observer-Dispatch v. National Labor Rel. Bd., 229 F.2d 575 (2 Cir. 1956), is also inapplicable because it relates to the presentation of evidence in an enforcing court and requires a petition to the Board to reopen the record before it. Singer, here, unsuccessfully sought the Board’s consideration of its evidence. We do not think that the proffered testimony was properly rejected or that the subpoena was properly revoked on the basis of the mental process rule. The rule could have no application to testimony from Singer’s employees, so that there need be considered only the question as to whether Connerton should have been prevented from testifying. The mental process rule protects the secret mental processes of those who, acting in a judicial or quasi-judicial capacity, make decisions as to facts or as to law. See, e. g., Chicago, B. & Q. R. Co. v. Babcock, 204 U.S. 585, 27 S.Ct. 326, 51 L.Ed. 636 (1907). The rule has been applied to federal administrative officials who act in a quasi-judicial capacity, United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1941); Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 773, 82 L.Ed. 1129 (1938); DeCambra v. Rogers, 189 U.S. 119, 23 S.Ct. 519, 47 L.Ed. 734 (1903); Norris & Hirshberg v. Securities and Exchange Com’n, 82 U.S.App.D.C. 32, 163 F.2d 689, 693 (1947); National Labor Relations Board v. Air Associates, 121 F.2d 586 (2 Cir. 1941); Walled Lake Door Company v. United States, 31 F.R.D. 258 (E.D.Mich.S.D.1962). Although not urged on us by the Board, United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1941), is often cited as a leading case stating and applying the mental process rule. We do not construe the language of this so-called fourth Morgan case as proscribing, under all circumstances, the probing of mental processes, United States v. Morgan, supra, pp. 421-422" }, { "docid": "22095689", "title": "", "text": ". Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 999, 82 L.Ed. 1129 (1938). See also the cases cited infra notes 23 to 26. . United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 85 L.Ed. 1429 (1941); DeCambra v. Rogers, 189 U.S. 119, 122, 23 S.Ct. 519, 47 L.Ed. 734 (1903); Kaiser Aluminum & Chemical Corp. v. United States, supra note 12, 157 F.Supp. at 946-947. . See Fayerweather v. Ritch, 195 U.S. 276, 306-307, 25 S.Ct. 58, 49 L.Ed. 193 (1904); DeCambra v. Rogers, supra note 23, 189 U.S. at 122, 23 S.Ct. 519. . Chicago, B. & Q. Ry. Co. v. Babcock, 204 U.S. 585, 593, 27 S.Ct. 326, 51 L.Ed. 636 (1907) ; West v. Hitchcock, 205 U.S. 80, 86, 27 S.Ct. 423, 51 L.Ed. 718 (1907); Union Savings Bank of Patchogue v. Saxon, 209 F.Supp. 319 (D.D.C.1962); Continental Distilling Corp. v. Humphrey, 17 F.R.D. 237, 241 (D.D.C.1955); National Labor Relations Board v. Air Associates, Inc., 121 F.2d 586, 588-589 (2d Cir. 1941). . United States v. Morgan, supra note 23, 313 U.S. at 422, 61 S.Ct. 999; Kaiser Aluminum & Chemical Corp. v. United States, supra note 12, 157 F.Supp. at 946-947. See also Norris & Hirshberg, Inc. v. Securities & Exchange Comm’n, 82 U.S.App.D.C. 32, 36, 163 F.2d 689, 691 (1947). . See United States v. Morgan, supra note 23, 313 U.S. at 422, 61 S.Ct. 999; Fayerweather v. Ritch, supra note 24, 195 U.S. at 306-307, 25 S.Ct. 58. . United States v. Morgan, supra note 23, 313 U.S. at 422, 61 S.Ct. at 1004. . Ibid. . In his affidavit, the Attorney General states: “Clearly, if this Department is to ' receive frank legal and policy recommendations and suggestions from its protessional staff and from other departments of the executive branch of the Government, such communications must be immune from public disclosure. Any impairment of the free flow of recommendations and suggestions would be a grave injury to the Government and would adversely affect the administration of justice and the public interest.” . No logical or legal distinction" }, { "docid": "4509862", "title": "", "text": "597, 61 S.Ct. 358, 85 L.Ed. 368. And the Supreme Court, during a period of more than thirty years, has often condemned, as both an impractical and an unwise judicial undertaking, the “probing of the mental processes” of officials engaged in reaching decisions, pursuant to statute, on the basis of evidence presented to them. Fayerweather v. Ritch, 1904, 195 U.S. 276, 306, 307, 25 S.Ct. 58, 49 L.Ed. 193; Chicago B. & Q. R. Co. v. Babcock, 1907, 204 U.S. 585, 593, 27 S.Ct. 326, 51 L.Ed. 636 ; Morgan v. United States, 1938, 304 U.S. 1, 18, 58 S.Ct. 773, 999, 82 L.Ed. 1129; United States and Secretary of Agriculture v. Morgan, May 26, 1941, 61 S.Ct. 999, 85 L.Ed. —; cf. N. L. R. B. v. Ford Motor Company, 9 Cir., 1941, 118 F.2d 766; DeCambra v. Rogers, 1903, 189 U.S. 119, 122, 23 S.Ct. 519, 47 L.Ed. 734; United States ex rel. West v. Hitchcock, 1907, 205 U.S. 80, 85, 86, 27 S.Ct. 423, 51 L.Ed. 718; United States v. Chemical Foundation, 1926, 272 U.S. 1, 15, 47 S.Ct. 1, 71 L.Ed. 131. Respondent argues that, as the intermediate report of the examiner, to which it filed exceptions, was discarded, it was accorded no opportunity to defend itself in the hearing before the Board itself. But N. L. R. B. v. Mackay Radio & Tel. Co., 304 U.S. 333, 350, 58 S.Ct. 904, 82 L.Ed. 1381, shows that the test of a fair hearing is whether the issues were clearly defined, so that respondent could address itself to the charges made against it. Cf. Morgan v. United States, 304 U.S. 1, 22, 58 S.Ct. 773, 999, 82 L.Ed. 1129; Consolidated Edison Co. v. N. L. R. B., 305 U.S. 197, 226-229, 59 S.Ct. 206, 83 L.Ed. 126; N. L. R. B. v. Biles Coleman Lumber Co., 9 Cir., 1938, 98 F.2d 16, 18; N. L. R. B. v. American Potash & Chemical Corp., 9 Cir., 1938, 98 F.2d 488, 492; N. L. R. B. v. Hearst, 9 Cir., 1939, 102 F.2d 658, 662. Respondent does not even" }, { "docid": "21337160", "title": "", "text": "Morgan v. United States, 298 U.S. 468, 480 [56 S.Ct. 906, 80 L.Ed. 1288]. Such an examination of a judge would be destructive of judicial responsibility. We have explicitly held in this very litigation that ‘it was not the function of the court to probe the mental processes of the Secretary.’ 304 U.S. 1, 18 [58 S.Ct. 773, 776, 82 L.Ed. 1129]. Just as a judge cannot be subjected to such a scrutiny, compare Fayerweather v. Ritch, 195 U.S. 276, 306-07 [25 S.Ct. 58, 49 L.Ed. 193], so the integrity of the administrative process must be equally respected. See Chicago B. & Q. Ry. Co. v. Babcock, 204 U.S. 585, 593 [27 S.Ct. 326, 51 L.Ed. 636]. It will bear repeating that although the administrative process has had a different development and pursues somewhat different ways from those of courts, they are to be deemed collaborative instrumentalities of justice and the appropriate independence of each should be respected by the other.” Our view of the fourth Morgan case is supported by several considerations. In the fourth Morgan case, the quoted statement was made at a final stage in the litigation after all claims of procedural and constitutional irregularity had been put to rest and, thus, when the only remaining question was that of the correctness of the Secretary’s determination under all of the evidence which had been adduced. In an earlier stage of the litigation, Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129 (1938), when there had been more than a colorable claim of procedural irregularity, examination of the Secretary, and the receipt of other evidence, to determine if there had been a denial of a constitutional right was relied on in support of the conclusion that the hearing was fatally defective. We find support, also, in the result in the first and second Accardi cases, United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954), and Shaughnessy v. United States ex rel. Accardi, 349 U.S. 280, 75 S.Ct. 746, 99 L.Ed. 1074 (1955). In the first Accardi" }, { "docid": "21337159", "title": "", "text": "of 313 U.S., pp. 1004-1005 of 61 S.Ct., pp. 1435-1436 of 85 L.Ed. There, the Court, by Mr. Justice Frankfurter, said: “Over the Government’s objection the district court authorized the market agencies to take the deposition of the Secretary. The Secretary thereupon appeared in person at the trial. He was questioned at length regarding the process by which he reached the conclusions of his order, including the manner and extent of his study of the record and his consultation with subordinates. His testimony shows that he dealt with the enormous record in a manner not unlike the practice of judges in similar situations, and that he held various conferences with the examiner who heard the evidence. Much was made of his disregard of a memorandum from one of his officials who, on reading the proposed order, urged considerations favorable to the market agencies. But the short of the business is that the Secretary should never have been subjected to this examination. The proceeding before the Secretary ‘has a quality resembling that of a judicial proceeding.’ Morgan v. United States, 298 U.S. 468, 480 [56 S.Ct. 906, 80 L.Ed. 1288]. Such an examination of a judge would be destructive of judicial responsibility. We have explicitly held in this very litigation that ‘it was not the function of the court to probe the mental processes of the Secretary.’ 304 U.S. 1, 18 [58 S.Ct. 773, 776, 82 L.Ed. 1129]. Just as a judge cannot be subjected to such a scrutiny, compare Fayerweather v. Ritch, 195 U.S. 276, 306-07 [25 S.Ct. 58, 49 L.Ed. 193], so the integrity of the administrative process must be equally respected. See Chicago B. & Q. Ry. Co. v. Babcock, 204 U.S. 585, 593 [27 S.Ct. 326, 51 L.Ed. 636]. It will bear repeating that although the administrative process has had a different development and pursues somewhat different ways from those of courts, they are to be deemed collaborative instrumentalities of justice and the appropriate independence of each should be respected by the other.” Our view of the fourth Morgan case is supported by several considerations. In the" }, { "docid": "10097386", "title": "", "text": "Commerce Commission, moreover, the record made by the hearing examiner is often subject to further review by other officers who have not heard the evidence, before the record is submitted to the agency for final decision. This practice tends to weaken the administrative process by diminishing the’ responsibility and status of the officer who conducts the hearing.” . Morgan v. United States, 1936, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288; Morgan v. United States, 1938, 304 U.S. 1, 18, 58 S.Ct. 773, 999, 82 L.Ed. 1129; United States v. Morgan, 1941, 313 U.S. 409, 422, 61 S.Ct. 999, 85 L.Ed. 1429; Norris & Hirshberg v. S. E. C., 1947, 82 U.S.App.D.C. 32, 163 E.2d 689, 693, cer-tiorari denied 333 U.S. 867, 68 S.Ct. 788, 92 L.Ed. 1145. . “In bearings * * * conducted pursuant to this section— “(a) There shall preside at the taking of evidence (1) the agency, (2) one or more members of the body which comprises the agency, or (3) one or more examiners appointed as provided * * 5 U.S.C.A. § 1006(a). . “In cases in which a hearing is required to be conducted in conformity with section 1006 * * * ***** “(b) Prior to each recommended, initial, or tenative decision, or decision upon agency review of the decision of subordinate officers, the parties shall be afforded a reasonable opportunity to submit for the consideration of the officers participating in such decisions (1) proposed findings and conclusions, or (2) exceptions to the decisions or recommended decisions of subordinate officers or to tentative agency decisions, and (3) supporting reasons for such exceptions or proposed findings or conclusions. The record shall show the ruling upon each such finding, conclusion, or exception presented. All decisions (including initial, recommended, or tenative decisions) shall become a part of the record and include a statement of (1) findings and conclusions, as well as the reasons or basis therefor, upon all of the material issues of fact, law, or discretion presented on the record; and (2) the appropriate rule, order, sanction, release, or denial thereof.” 5 U.S.O.A. § 1007(b)." }, { "docid": "657618", "title": "", "text": "held that complainant had not make out a prima facie case of abuse of discretion, and hence, that no trial de novo was required. We agree with this conclusion. Lastly, appellant contends that it should have been allowed to take depositions of the Comptroller and two of his subordinate officials. Appellant has not shown “a prima facie case of misconduct.” Singer Sewing Machine Co. v. N.L.R.B., 329 F.2d 200, 208, 12 A.L.R.3d 775 (4th Cir. 1964). What appellant seems to us to seek is an opportunity to depose the Comptroller in order to probe his mind as to exactly why he saw fit to exercise his discretion as he did in relation to the grant of this charter. This appellant clearly was not entitled to do. In the fourth Morgan case, United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1941), the United States Supreme Court said: “Over the Government’s objection the district court authorized the market agencies to take the deposition of the Secretary. The Secretary thereupon appeared in person at the trial. He was questioned at length regarding the process by which he reached the conclusions of his order, including the manner and extent of his study of the record and his consultation with subordinates. * * * [T]he short of the business is that the Secretary should never have been subjected to this examination. The proceeding before the Secretary ‘has a quality resembling that of a judicial proceeding.’ Morgan v. United States, 298 U.S. 468, 480 [56 S.Ct. 906, 911, 80 L.Ed. 1288]. Such an examination of a judge would be destructive of judicial responsibility. We have explicitly held in this very litigation that ‘it was not the function of the court to probe . the mental processes of the Secretary.’ 304 U.S. 1, 18 [58 S.Ct. 773, 776, 82 L.Ed. 1129]. Just as a judge cannot be subjected to such a scrutiny, compare Fayerweather v. Ritch, 195 U.S. 276, 306-307 [25 S.Ct. 58, 67, 49 L.Ed. 193] so the integrity of the administrative process must be equally respected. See Chicago, B. &" }, { "docid": "6409665", "title": "", "text": "at 21. . 7 U.S.C. § 135b(c) (1970). See also 7 U.S.C. § 136d (d) (Supp. II, 1972). . “The basis of Exemption (5), as of the privilege which antedated it, is the free and uninhibited exchange and communication of opinions, ideas, and points of view—a process as essential to the wise functioning of a big government as it is to any organized human effort. In the Federal Establishment, as in General Motors or any other hierarchical giant, there are enough incentives as it is for playing it safe and listing with the wind; Congress clearly did not propose to add to them the threat of cross-examination in a public tribunal.” McGowan, J., in Ackerly v. Ley, 137 U.S.App.D.C. 133, 138, 420 F.2d 1336, 1341 (1969). . Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288 (1936) [Morgan I] ; 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129 (1938) [Morgan II] ; 307 U.S. 183, 59 S.Ct. 795, 83 L.Ed. 1211 (1939) [Morgan III] ; 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1941) [Morgan IV]. . 298 U.S. at 481, 56 S.Ct. at 912. . Ibid. See also Braniff Airways, Inc. v. CAB, 126 U.S.App.D.C. 399, 407, 379 F.2d 453, 461 (1967), which also recognizes that the use of subordinates to sift the record may be appropriate. Braniff was not a FOIA case, although its administrative law principles are applicable here. . 304 U.S. at 18, 58 S.Ct. at 776. . 313 U.S. at 422, 61 S.Ct. 999, 85 L.Ed. 1429. . The Morgan cases were relied on in another non-FOIA ease with special relevance to the case at bar. Norris & Hirshberg, Inc. v. SEC, 82 U.S.App.D.C. 32, 163 F.2d 689 (1947), cert. denied, 333 U.S. 867, 68 S.Ct. 788, 92 L.Ed. 1145 (1948), involved in part a claim that the SEC relied on a summary, of the evidence in a case before the Commission which should have been filed in the record. In considering this claim, the court noted that the agency may utilize the services of subordinates to sift and" }, { "docid": "21337156", "title": "", "text": "Fedor’s activities and Connerton’s activities. Nor does the record show when Singer sought Board review of the unit determination. The record is clear that at the unfair labor practice hearing Singer sought to present the evidence in this regard and asserted its contentions based thereon. This case is thus unlike Pittsburgh P. Glass Co. v. National Labor Rel. Bd., 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251 (1941), cited by the board, which sustained the Board’s refusal to permit the employer to present at the unfair labor practice hearing evidence which was available, pertinent and not presented at the unit hearing. In the instant case, Singer’s complaint is based solely upon evidence of events which occurred after the unit hearing and, thus, was not available at the representation hearing. National Lab. Rel. Bd. v. Southern Bleachery & Pr. Wks., 257 F.2d 235 (4 Cir. 1958), cert. den. 359 U.S. 911, 79 S.Ct. 588, 3 L.Ed.2d 575 (1959), and National Labor Rel. Board v. West Kentucky Coal Co., 152 F.2d 198 (6 Cir. 1945), cert. den. 328 U.S. 866, 66 S.Ct. 1372, 90 L.Ed. 1636 (1946) are also not on point. They, too, relate only to evidence not adduced at the representation hearing which was then available. Utica Observer-Dispatch v. National Labor Rel. Bd., 229 F.2d 575 (2 Cir. 1956), is also inapplicable because it relates to the presentation of evidence in an enforcing court and requires a petition to the Board to reopen the record before it. Singer, here, unsuccessfully sought the Board’s consideration of its evidence. We do not think that the proffered testimony was properly rejected or that the subpoena was properly revoked on the basis of the mental process rule. The rule could have no application to testimony from Singer’s employees, so that there need be considered only the question as to whether Connerton should have been prevented from testifying. The mental process rule protects the secret mental processes of those who, acting in a judicial or quasi-judicial capacity, make decisions as to facts or as to law. See, e. g., Chicago, B. & Q. R." }, { "docid": "12335892", "title": "", "text": "Court — this time through Justice Frankfurter — re-emphasized that once the threshold requirement of an individual decision is established, no further inquiry is justified: [The Secretary’s] testimony shows that he dealt with the enormous record in a manner not unlike the practice of judges in similar situations, and that he held various conferences with the examiner who heard the evidence. Much was made of his disregard of a memorandum from one of his officials who, on reading the proposed order, urged considerations favorable to the market agencies. But the short of the business is that the Secretary should never have been subjected to this examination. The proceeding before the Secretary “has a quality resembling that of a judicial proceeding”. Morgan v. United States, 298 U.S. 468, 480, [56 S.Ct. 906, 911, 80 L.Ed. 1288]. Such an examination of a judge would be destructive of judicial responsibility. We have explicitly held in this very litigation that “it was not the function of the court to probe the mental processes of the Secretary”. 304 U.S. 1, 18 [58 S.Ct. 773, 776, 82 L.Ed. 1129], Just as a judge cannot be subjected to such a scrutiny, compare Fayerweather v. Ritch, 195 U.S. 276, 306-307 [25 S.Ct. 58, 67, 49 L.Ed. 193], so the integrity of the administrative process must be equally respected. See Chicago, B & Q. Ry. Co. v. Babcock, 204 U.S. 585, 593, [27 S.Ct. 326, 327, 51 L.Ed. 636]. 313 U.S. 409, 422. Thus what emerges from the Morgan quartet is the principle that those legally responsible for a decision must in fact make it, but that their method of doing so — their thought processes, their reliance on their staffs — is largely beyond judicial scrutiny. This court and many others have consistently relied on Morgan to uphold the use of hearing examiners in developing evidence and forming preliminary decisions, the reliance on staff assistants for recommendations and draft opinions, and a variety of other procedures designed to apprise those legally responsible for administrative decisions with the critical issues and evidence in a case and to record their" }, { "docid": "21337162", "title": "", "text": "case, an alien, who was ordered to be deported, claimed that his application for suspension of deportation was denied by the Board to which it was referred, because the Board had prejudged his case. The prejudice, it was contended, resulted from the circulation by the Attorney General prior to the Board’s decision of a confidential list of “unsavory characters,” which included his name. The right of the alien to establish these facts, in a proceeding for the issuance of a writ of habeas corpus, was upheld. After examination of the Board members, their testimony was relied upon in the second Accardi case to support the conclusion that Accardi had failed to prove his case. It is our opinion, therefore, that the mental process rule is but “one facet of the general presumption of regularity” which attaches to decisions of administrative bodies, 2 Davis, Administrative Law (1958), § 11.06, p. 63. Thus, we conclude, where a prima facie case of misconduct is shown, justice requires that the mental process rule be held inapplicable. Shaughnessy v. United States ex rel. Accardi, supra; United States ex rel. Accardi v. Shaughnessy, supra; Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 773, 82 L.Ed. 1129 (1938) ; National Labor Relations Board v. Ford Motor Co., 118 F.2d 766, 768 fn. 2 (9 Cir. 1941); Union Savings Bank of Patchogue, New York v. Saxon, 209 F.Supp. 319 (D.C.1962). Cf. National Labor Relations Board v. Donnelly Garment Co., 330 U.S. 219, 229, 67 S.Ct. 756, 91 L.Ed. 854 (1947), and see generally, Clark v. United States, 289 U.S. 1, 13-14, 53 S.Ct. 465, 77 L.Ed. 993 (1933). As we have previously said, the only inference to be drawn from the record in its present state, including a consideration of the proffered testimony, is that there has been a violation of § 9(c) (5), 29 U.S.C.A. § 159(c) (5), so that it follows that the mental process rule is inapplicable to Mr. Connerton. The claim that the Board may limit the scope of inquiry before it, and before this Court, under the facts and circumstances shown" }, { "docid": "22095688", "title": "", "text": "with power to decide and act. Government from its nature bas necessarily been granted a certain freedom from control beyond that given tbe citizen. * * * There is a public policy involved in this claim of privilege for this advisory opinion—the policy of open, frank discussion between subordinate and chief concerning administrative action.” Kaiser Aluminum & Chemical Corp. v. United States, supra note 12, 157 F.Supp. at 945-946. . Essentially similar policies of uninhibited communication underlie such frequently used common law privileges as those sub-serving the attorney-client and husband-wife relationships. See 8 Wigmore, Evidence, §§ 2291, 2332 (McNaughton rev. 1961). . “Government, operating as it does through a hierarchy of agents, must have the benefit of their full, free advices.” United States v. Proctor & Gamble Co., 25 F.R.D. 485, 489 (D.N.J.1960). . 5 U.S.C. §§ 291, 306. . 28 U.S.C. § 507(b) ; Exec. Order No. 6166, § 5 (1933), reprinted at 5 U.S.C. 157, 159 (1964). . Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 393, 91 L.Ed. 451 (1947). . Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 999, 82 L.Ed. 1129 (1938). See also the cases cited infra notes 23 to 26. . United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 85 L.Ed. 1429 (1941); DeCambra v. Rogers, 189 U.S. 119, 122, 23 S.Ct. 519, 47 L.Ed. 734 (1903); Kaiser Aluminum & Chemical Corp. v. United States, supra note 12, 157 F.Supp. at 946-947. . See Fayerweather v. Ritch, 195 U.S. 276, 306-307, 25 S.Ct. 58, 49 L.Ed. 193 (1904); DeCambra v. Rogers, supra note 23, 189 U.S. at 122, 23 S.Ct. 519. . Chicago, B. & Q. Ry. Co. v. Babcock, 204 U.S. 585, 593, 27 S.Ct. 326, 51 L.Ed. 636 (1907) ; West v. Hitchcock, 205 U.S. 80, 86, 27 S.Ct. 423, 51 L.Ed. 718 (1907); Union Savings Bank of Patchogue v. Saxon, 209 F.Supp. 319 (D.D.C.1962); Continental Distilling Corp. v. Humphrey, 17 F.R.D. 237, 241 (D.D.C.1955); National Labor Relations Board v. Air Associates, Inc., 121 F.2d 586, 588-589 (2d Cir. 1941). . United States v." }, { "docid": "8268185", "title": "", "text": "and approving a patent. Plaintiff contends that all of these questions violate the so-called “mental processes” rule. See Lupo, The Impact of Mayewsky, 55 J.P.O.S. 216 (1973). The Commissioner of Patents has filed an amicus brief supporting and expanding upon Plaintiff’s position. Although this Court does not disagree with Plaintiff’s statement of law, the application of the relevant principles to the present questions dictates a finding substantially in favor of Defendant. The facts underlying this action have been discussed in previous opinions in this case and need no repetition here. I. Generally, all individuals are subject to the lawful authority of a competent court to compel testimony of any facts within their knowledge and relevant to the issues at hand. See Blair v. United States, 250 U.S. 273, 279-283, 39 S.Ct. 468, 63 L.Ed. 979 (1918); 98 C.J. S. Witnesses § 430, nn. 9-19. An exemption from compulsory testimony is recognized in certain situations to protect the integrity and individual responsibility of governmental officials whose duties involve the exercise of judicial and quasi-judicial authority. See the Morgan decisions, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288 (1935), 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129 (1938), 307 U.S. 183, 59 S.Ct. 795, 83 L.Ed. 1211 (1939), and 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1941). See also Fayerweather v. Ritch, 195 U.S. 276, 25 S.Ct. 58, 49 L.Ed. 193 (1904) and Chicago, B. & Q. Ry. Co. v. Babcock, 204 U.S. 585, 27 S.Ct. 326, 51 L.Ed. 636 (1906). To allow certain exemptions to these officers is not to provide them with a blanket immunity from testimony. Like any testimonial “privilege,” this one must be construed and applied with the greatest care for fear that it be misused or abused. And, indeed, the courts have been most scrupulous in delineating between protected and unprotected testimony on a case-by-ease basis. In various instances and circumstances, judges, jurors, justices of the peace, and referees have been compelled to testify. See Downey v. United States, 67 App.D. C. 192, 91 F.2d 223 (1937); Gore v. State, 22 Ala.App. 136," }, { "docid": "21337163", "title": "", "text": "States ex rel. Accardi, supra; United States ex rel. Accardi v. Shaughnessy, supra; Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 773, 82 L.Ed. 1129 (1938) ; National Labor Relations Board v. Ford Motor Co., 118 F.2d 766, 768 fn. 2 (9 Cir. 1941); Union Savings Bank of Patchogue, New York v. Saxon, 209 F.Supp. 319 (D.C.1962). Cf. National Labor Relations Board v. Donnelly Garment Co., 330 U.S. 219, 229, 67 S.Ct. 756, 91 L.Ed. 854 (1947), and see generally, Clark v. United States, 289 U.S. 1, 13-14, 53 S.Ct. 465, 77 L.Ed. 993 (1933). As we have previously said, the only inference to be drawn from the record in its present state, including a consideration of the proffered testimony, is that there has been a violation of § 9(c) (5), 29 U.S.C.A. § 159(c) (5), so that it follows that the mental process rule is inapplicable to Mr. Connerton. The claim that the Board may limit the scope of inquiry before it, and before this Court, under the facts and circumstances shown here, by its regulation adopted under the so-called “Housekeeping Statute” merits little consideration. We believe that here, Singer has established prima facie by its proffered evidence that there was an actual violation of § 9(c) (5) of the Act, 29 U.S.C.A. § 159(e) (5), so as to render highly pertinent the testimony of Mr. Connerton as to whether he participated in any violation of the law on the Board’s behalf and thus to overcome any policy in favor of the Board’s right of non-disclosure, United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953); N. L. R. B. v. Capitol Fish Co., 294 F.2d 868 (5 Cir. 1961). In short, Singer satisfies us that the search for truth is more important in this case than the policy of the Board, in protecting Mr. Connerton from testifying and in protecting the actual basis-on which the Board’s certification of the-Pittsburgh City District rests. Because the Board erroneously excluded evidence which it should have received and erroneously revoked a subpoena and thus prevented a" } ]

[ { "docid": "22326538", "title": "", "text": "Corp., 90 F.3d 617, 628(1st Cir.1996)). Mitchell v. Duval County Sch. Bd., 107 F.3d 837, 839-40 (11th Cir.1997)(affirming dismissal of state-created danger claim where it was “beyond doubt that appellant cannot prove a set of facts” which support his claim); Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198 (5th Cir.1994), cert. denied, 514 U.S. 1017, 115 S.Ct. 1361, 131 L.Ed.2d 218 (1995)(same). Ill Discussion Plaintiff brought this civil rights action under 42 U.S.C. § 1983. By itself, Sec tion 1983 does not create any rights, but provides a remedy for violations of those rights created by the Constitution or federal law. Baker v. McCollan, 443 U.S. 137,144 n. 3, 99 S.Ct. 2689, 2695 n. 3, 61 L.Ed.2d 433 (1979); Kneipp, 95 F.3d at 1204. In order to state a claim, plaintiff must show that defendants, acting under color of state law, deprived him of a right secured by the Constitution or the laws of the United States. See Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). As noted, plaintiff alleged defendants subjected Diane Morse to a dangerous and ultimately fatal situation, in violation of her Fourteenth Amendment right to substantive due process, by allowing a mentally deranged and homicidal third party to have access to the day care center where Diane Morse worked. Although the general rule is that the state has no affirmative obligation to protect its citizens from the violent acts of private individuals, courts have recognized two exceptions to this rule. See, e.g., D.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1369-73 (3d Cir.1992) (en banc), cert. denied, 506 U.S. 1079, 113 S.Ct. 1045, 122 L.Ed.2d 354 (1993); Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir.1995), cert. denied, — U.S.-, 116 S.Ct. 924, 133 L.Ed.2d 853 (1996). The first of these is commonly known as the “special relationship” exception, and allows a plaintiff to recover “when the state enters into a special relationship with a particular citizen ..." } ]

[ { "docid": "8571990", "title": "", "text": "Summary Judgment as to Municipal Liability under Section 1983 In order to prevail in a civil rights action under section 1983, “a plaintiff must make a prima facie showing of two elements: (1) that the act or omission deprived plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United States, and (2) that the act or omission was done by a person acting under color of law.” Dollar v. Haralson County, 704 F.2d 1540, 1542-43 (11th Cir.), cert. denied, 464 U.S. 963, 104 S.Ct. 399, 78 L.Ed.2d 341 (1983); Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Barfield, 883 F.2d at 934; Everett, 833 F.2d at 1510. While it is not a source of substantive rights, section 1983 provides a method for vindicating federal rights conferred by the Constitution and federal statutes. Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694 n. 3, 61 L.Ed.2d 433 (1979); Barfield, 883 F.2d at 934. We have concluded that the district court misinterpreted the municipal liability under the second element of a section 1983, prima facie case and erred in not progressing to consideration of the alleged constitutional violations comprising the first element of a prima facie case. Although no answer had been filed by the City of Fort Lauderdale and discovery was limited to the issue of qualified immunity, the district court granted summary judgment to the City of Fort Lauder-dale because it concluded that the facts revealed only respondeat superior liability against the city, and did not address the constitutional merits of the case. The Supreme Court has held that municipalities are persons to whom section 1983 applies. Monell v. Dept. of Social Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611 (1978). With respect to civil rights violations, municipalities are not entitled to absolute or qualified immunity. Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 1409, 63 L.Ed.2d 673" }, { "docid": "8571989", "title": "", "text": "burden. Anderson, 477 U.S. at 248, 254, 106 S.Ct. at 2510, 2513. “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 255, 106 S.Ct. at 2513; Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970); Augusta Iron & Steel Works, Inc. v. Employers Ins. of Wausau, 835 F.2d 855, 856 (11th Cir.1988) (per curiam); Everett, 833 F.2d at 1510. If more than one inference could be construed from the facts by a reasonable fact finder, and that inference introduces a genuine issue of material fact, then the district court should not grant summary judgment. Barfield, 883 F.2d at 933-34; Samples ex rel. Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir.1988). Accordingly, we must determine if genuine issues of material fact exist in this case after examining the governing substantive law. Anderson, 477 U.S. at 250, 106 S.Ct. at 2511; Everett, 833 F.2d at 1510. B. The Grant of Summary Judgment as to Municipal Liability under Section 1983 In order to prevail in a civil rights action under section 1983, “a plaintiff must make a prima facie showing of two elements: (1) that the act or omission deprived plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United States, and (2) that the act or omission was done by a person acting under color of law.” Dollar v. Haralson County, 704 F.2d 1540, 1542-43 (11th Cir.), cert. denied, 464 U.S. 963, 104 S.Ct. 399, 78 L.Ed.2d 341 (1983); Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Barfield, 883 F.2d at 934; Everett, 833 F.2d at 1510. While it is not a source of substantive rights, section 1983 provides a method for vindicating federal rights conferred by the Constitution and federal statutes. Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694" }, { "docid": "22121550", "title": "", "text": "Id. While “ ‘a complaint need not set down in detail all the particularities of a plaintiffs claim,’ the complaint must give the defendant ‘fair notice of what the plaintiffs claim is and the grounds upon which it rests.’ ” Id. (citations omitted). Section 1983 provides that one who, under color of state law, deprives another of the “rights, privileges, or immunities secured by the Constitution and laws, shall be liable” for damages. Thus, the threshold inquiry for bringing a claim under section 1983 is “whether the plaintiff has been deprived of a right ‘secured by the Constitution and laws.’” Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979) (citation omitted). As the Supreme Court explained in Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), the Due Process Clause of the Fourteenth Amendment bars “certain government actions regardless of the fairness of the procedures used to implement them.” Id. at 331, 106 S.Ct. at 665. This is “the concept embodied in the phrase ‘substantive due process,’ ” Lewellen v. Metropolitan Government of Nashville, 34 F.3d 345, 346 (6th Cir.1994), cert. denied, - U.S. -, 115 S.Ct. 903, 130 L.Ed.2d 787 (1995), and this is the general theory underlying the plaintiffs’ section 1983 claims. This court has recognized two categories of substantive due process rights: The first type includes claims asserting denial of a right, privilege, or immunity secured by the Constitution or by federal statute other than procedural claims under “the Fourteenth Amendment simpliciter.\" The other type of claim is directed at official acts which may not occur regardless of the procedural safeguards accompanying them. The test for substantive due process claims of this type is whether the conduct complained of “shocks the conscience” of the court. Mertik v. Blalock, 983 F.2d 1353, 1367-68 (6th Cir.1993). The first type of claim exists, for example, when a plaintiff alleges that his right to be free from unreasonable seizures under the Fourth Amendment was violated. See Wilson v. Beebe, 770 F.2d 578, 585-86 (6th Cir.1985) (en banc); see also Braley v." }, { "docid": "23312279", "title": "", "text": "is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). If a reasonable fact finder could draw more than one inference from the facts, and that inference creates a genuine issue of material fact, then the court should refuse to grant summary judgment. Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir.1988). In this case, we view the evidence produced by Mrs. Cornelius, the non-moving party, and all factual inferences arising from it, in the light most favorable to her. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Everett, 833 F.2d at 1510; Barnes v. Southwest Forest Indus., Inc., 814 F.2d 607, 609 (11th Cir.1987). Considering these principles, we now turn to an evaluation of the substantive law governing this case to determine the propriety of the district court’s order granting summary judgment. IV. ANALYSIS To prevail in a civil rights action under 42 U.S.C. § 1983 a plaintiff must show that the defendant, under color of state law, deprived the plaintiff of a right secured by the Constitution and laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Everett, 833 F.2d at 1510; Dollar v. Haralson County, 704 F.2d 1540, 1542-43 (11th Cir.), cert. denied, 464 U.S. 963, 104 S.Ct. 399, 78 L.Ed.2d 341 (1983). Section 1983 alone creates no substantive rights; rather it provides a remedy for deprivations of rights established elsewhere in the Constitution or federal laws. Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2674 n. 3, 61 L.Ed.2d 433 (1979); Wideman v. Shallowford Community Hosp., Inc., 826 F.2d 1030, 1032 (11th Cir.1987). An underlying constitutional right must exist before a § 1983 action will lie. Wideman, 826 F.2d at 1032. Accordingly, our inquiry focuses upon the nature of the plaintiff’s" }, { "docid": "9866153", "title": "", "text": "26 F.3d 439, 446 (3d Cir.1994)). III. Section 1983 imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States. This section does not create any new substantive rights but instead provides a remedy for the violation of a federal constitutional or statutory right. See Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979) (“[S]ection[1983] is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that [section 1983] describes.”). To state a claim under § 1983, a plaintiff must show that the defendant, through conduct sanctioned under the color of state law, deprived her of a federal constitutional or statutory right. See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 907 (3d Cir.1997) (citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). In a typical § 1983 action, a court must initially determine whether the plaintiff has even alleged the deprivation of a right that either federal law or the Constitution protects. See Baker, 443 U.S. at 140, 99 S.Ct. 2689 (“The first inquiry in any § 1983 suit ... is whether the plaintiff has been deprived of a right ‘secured by the Constitution and laws.’ ”). As the Supreme Court recently emphasized, when the defendant in a § 1983 action claims qualified immunity, our first task is to assess whether the plaintiffs allegations are sufficient to establish the violation of a constitutional or statutory right at all. See, e.g., Conn v. Gabbert, 526 U.S. 286, 290, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999); County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). If the plaintiffs allegations meet this threshold, we must next determine whether, as a legal matter, the" }, { "docid": "3695686", "title": "", "text": "personal privacy. In Count IV, plaintiff also claims in her individual capacity that all defendants, including Officers Moyers, Collins, Pickens and Batten, deprived her of rights, privileges and immunities guaranteed to her by the Fourth, Fifth, Eighth and Fourteenth Amendments. More specifically, plaintiff contends that the officers’ conduct violated her constitutional rights to: 1) The care, custody and management of Robbie and his affairs; and 2) Freedom from deprivation of her parent-child relationship without due process of law. The first question to be addressed in any claim under 42 U.S.C. § 1983 is whether the two essential elements of a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under the color of state law; and (2) whether the conduct deprived a person of rights, privileges, or immunities secured by the constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981), overruled in part by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Defendants have not seriously contested that their actions were other than under color of state law. Therefore, our focus is on isolating the particular constitutional violations alleged. It is axiomatic that section 1983, standing alone, vests no substantive rights upon a plaintiff; it merely provides a remedy for deprivations of rights found elsewhere in the Constitution or in federal laws. Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694 n. 3, 61 L.Ed.2d 433 (1979). The Due Process Clause of the Fourteenth Amendment provides, at a minimum, three different types of constitutional protections: it incorporates and makes applicable to the states specific protections embodied in the Bill of Rights; it guarantees a right to what has been termed “ ‘substantive due process/ which bars certain arbitrary government actions ‘regardless of the fairness of the procedures used to implement them;” and it provides a right to “procedural due process,” in providing a constitutionally-required minimum of procedural safeguards in connection with a deprivation of life, liberty or property by the" }, { "docid": "942666", "title": "", "text": "inquiry. Our jurisdiction over Ms. Bul-jko’s interlocutory appeal is proper. III. DISCUSSION We begin by discussing the applicable law and our standard of review. We then analyze Mr. Margheim’s malicious prosecution claim and conclude he has failed to show a violation of his Fourth Amendment rights because he has not satisfied the favorable termination element of his claim. Accordingly, we conclude Ms. Buljko is entitled to qualified immunity. A. Legal Background We address (1) § 1983 generally, (2) Fourth Amendment malicious prosecution claims, (3) the favorable termination element of such a claim, and (4) the doctrine of qualified immunity. 1. Claims Under 42 U.S.C. § 1983 Section 1983 provides that a person acting under color of state law who “subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.” 42 U.S.C. § 1983. The statute “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979); see also Brown v. Buhman, 822 F.3d 1151, 1161 n.9 (10th Cir. 2016) (explaining “[t]here can be no ‘violation’ of § 1983” because the statute “is a remedial vehicle”). Section 1983 does not allow plaintiffs to create a federal case out of “every violation of state common law.” Pierce v. Gilchrist, 359 F.3d 1279, 1285 (10th Cir. 2004). Accordingly, “[t]he first inquiry in any § 1983 suit ... is whether the plaintiff has been deprived of a right ‘secured by the Constitution and laws.’ ” Baker, 443 U.S. at 140, 99 S.Ct. 2689 (quoting 42 U.S.C. § 1983). 2. Fourth Amendment Malicious Prosecution Claim The Fourth Amendment provides one source of rights enforceable in a § 1983 action. See, e.g., Gutierrez v. Cobos, 841 F.3d 895, 898 (10th Cir. 2016) (addressing § 1983 claims for excessive force, unlawful entry, and unlawful seizure based on the Fourth Amendment). As the Supreme Court recently reconfirmed, the Fourth Amendment provides a" }, { "docid": "22789711", "title": "", "text": "the rule, the nonmov-ing party’s response must set forth specific facts showing a genuine issue for trial. If the party’s response consists of nothing more than a repetition of his conclusory allegations, the district court must enter summary judgment in the moving party’s favor. Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir.1981), cert. denied, 456 U.S. 1010, 102 S.Ct. 2303, 73 L.Ed.2d 1306 (1982). As a preliminary matter, the defendants argue that the plaintiff wholly failed to respond to their motion for summary judgment and therefore, the district court correctly entered judgment in their favor. On the contrary, the plaintiff filed his memorandum in opposition to the defendants’ motion with his supporting affidavit and exhibits on January 22,1988. Although we note that this date was two days after the deadline set by the district court for consideration of the summary judgment motion, the court nevertheless, considered the plaintiff’s memorandum and evidence in opposition. We construe this action by the district court as entertaining the plaintiff’s response on the merits, and thus, review the record in light of the plaintiff’s memorandum, and its supporting documentation, opposing the defendants’ summary judgment motion. To prevail in a civil rights action under 42 U.S.C. § 1983 a plaintiff must show that the defendant, under color of state law, deprived the plaintiff of a right secured by the Constitution and laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct.1908, 1913, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Everett, 833 F.2d at 1510; Dollar v. Haralson County, 704 F.2d 1540, 1542-43 (11th Cir.), cert. denied, 464 U.S. 963, 104 S.Ct. 399, 78 L.Ed.2d 341 (1983). Section 1983 alone creates no substantive rights; rather it provides a remedy for deprivations of rights established elsewhere in the Constitution or federal laws. Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694 n. 3, 61 L.Ed.2d 433 (1979); Wideman v. Shallowford Community Hosp., Inc., 826 F.2d 1030, 1032 (11th Cir.1987). An underlying constitutional right must exist" }, { "docid": "11565099", "title": "", "text": "a plaintiff need not necessarily address a defendant’s state of mind to successfully articulate a section 1983 cause of action because “[sjection 1983, unlike its criminal counterpart, 18 U.S.C. § 242, has never been found by [the Supreme Court] to contain a state-of-mind requirement.” Parratt v. Taylor, 451 U.S. 527, 534, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981). “Both Baker v. McCollan [443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)] and Monroe v. Pape [365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) ] suggest that § 1983 affords a ‘civil remedy’ for deprivations of federally protected rights caused by persons acting under color of state law without any express requirement of a particular state of mind. Accordingly, in any § 1983 action the initial inquiry must focus on whether the two essential elements to a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Id. 451 U.S. at 535, 101 S.Ct. at 1913 (emphasis added). However, the Court has noted that some constitutional violations may by their very nature incorporate an element of intent. See Baker, 443 U.S. at 140 n. 1, 99 S.Ct. at 2692 n. 1. Commentators generally agree that because section 1983 does not itself contain any intent requirement, the relevant inquiry should focus on what state of mind, if any, is imposed by the particular constitutional provision at issue. See generally S. Nahmod, Civil Rights & Civil Liberties Litigation, § 3.01-02 (1979); Kirkpatrick, Defining a Constitutional Tort Under Section 1983: The State-of-Mind Requirement, 46 Cin.L.Rev. 45 (1977); Comment, Actionability of Negligence Under Section 1983 and the Eighth Amendment, 127 U.Pa.L.Rev. 533 (1978). The Supreme Court has not specifically articulated what intent, if any, is embodied in the due process clause. In Parratt, the Court indicated that an act of simple negligence by a state official may result in a constitutional deprivation of due process. 451" }, { "docid": "9866152", "title": "", "text": "dismissed the state tort law claims for lack of subject matter jurisdiction. On November 9,1998, the Gruenkes appealed the District Court’s decision. II. The District Court had subject matter jurisdiction over the Gruenkes’ § 1983 claims pursuant to 28 U.S.C. § 1331, and over their state tort law claims under 28 U.S.C. § 1367. We have appellate jurisdiction over the Gruenkes’ claims under 28 U.S.C. § 1291. Our review of the District Court’s disposition of a § 1983 case on summary judgment alleging qualified immunity is plenary: [We] review the district court’s summary judgment determination de novo, applying the same standard as the district court.... [I]n all eases[,] summary judgment should be granted if, after drawing all reasonable inferences from the underlying facts in the light most favorable to the non-moving party, the court concludes that there is no genuine issue of material fact to be resolved at trial[,] and the moving party is entitled to judgment as a matter of law. Kornegay v. Cottingham, 120 F.3d 392, 395 (3d Cir.1997) (quoting Spain v. Gallegos, 26 F.3d 439, 446 (3d Cir.1994)). III. Section 1983 imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States. This section does not create any new substantive rights but instead provides a remedy for the violation of a federal constitutional or statutory right. See Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979) (“[S]ection[1983] is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that [section 1983] describes.”). To state a claim under § 1983, a plaintiff must show that the defendant, through conduct sanctioned under the color of state law, deprived her of a federal constitutional or statutory right. See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 907 (3d Cir.1997) (citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420" }, { "docid": "16211010", "title": "", "text": "departmental regulations and/or policy required that she be handcuffed and that, once at headquarters, that she be restrained, which was accomplished by shackling her leg to the floor. (Id. at ¶¶ 17-18; D. Moyer Aff. at ¶¶ 16-17.) After calling DeBellis’ father, Bennis realized that they had the wrong individual, at which point DeBellis was released. (C. Bennis Aff. at ¶¶ 19-20.) IV. DISCUSSION A. Claims Under 42 U.S.C. § 1983 1.42 U.S.C. § 1983: Background 42 U.S.C. § 1983 imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States. Section 1983 does not create any new substantive rights, but instead provides a remedy for the violation of a federal constitutional or statutory right. Baker v. McCollan 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979); Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir.2000). To state a claim under Section 1983, a plaintiff must show that the defendant, through conduct sanctioned under the color of state law, deprived her of a federal constitutional or statutory right. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.E.2d 420 (1986); Gruenke, 225 F.3d at 298. In Count VI, plaintiffs allege violations of the Fourth Amendment to the United States Constitution as the bases for their Section 1983 claim. Plaintiffs contend that defendants violated DeBellis’ constitutional rights by arresting her without probable cause and by using excessive force in effectuating her arrest. With respect to plaintiffs’ Section 1983 claims, defendants’ brief in support of their motion for summary judgment contends in substance that (1) the officers are entitled to qualified immunity on the grounds that they took DeBel-lis into custody upon a reasonable mistake and (2) the excessive force claim should be dismissed because the evidence establishes that the officers used only the force that was necessary to apprehend the suspect. Each of these arguments is discussed in turn. 2. 42 U.S.C. § 1983: Liability of Allentown Police Department First, we dispose of" }, { "docid": "13319864", "title": "", "text": "usage of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983 (1988). Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694-95 n. 3, 61 L.Ed.2d 433 (1979). The plaintiffs in this case ground their claim on the substantive component of the Due Process Clause of the Fourteenth Amendment. The Due Process Clause provides that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV. Case law indicates that to prevail in a case brought under § 1983 for violations of the Due Process Clause, the plaintiff must show that the defendant acted under color of state law, Monroe v. Pape, 365 U.S. 167, 172-87, 81 S.Ct. 473, 476-84, 5 L.Ed.2d 492 (1961), that at stake was a protected property interest or a liberty interest, Board of Regents v. Roth, 408 U.S. 564, 570-78, 92 S.Ct. 2701, 2705-10, 33 L.Ed.2d 548 (1972); Paul v. Davis, 424 U.S. 693, 710-12, 96 S.Ct. 1155, 1165-66, 47 L.Ed.2d 405 (1976), that the defendant had a duty of care toward the plaintiff, Collins v. City of Harker Heights, — U.S. -, -, 112 S.Ct. 1061, 1068-71, 117 L.Ed.2d 261 (1992); DeShaney v. Winnebago County Dept. of Social Serv., 489 U.S. 189, 194-203, 109 S.Ct. 998, 1002-1007, 103 L.Ed.2d 249 (1989), and that a deprivation within the meaning of the Due Process Clause occurred, Daniels v. Williams, 474 U.S. 327, 329-33, 106 S.Ct. 662, 664-66, 88 L.Ed.2d 662 (1986). Whether an unconstitutional deprivation occurred is the only element at issue in this case.. It is important for us to keep this fact in mind so that we will not" }, { "docid": "22966909", "title": "", "text": "driver was probably going to be intoxicated.” (Pollock Dep. at 33.) The record does not reveal how the dispatcher obtained this information, but Officer Howell first learned Gregory and Fields had driven away after the accident had occurred. (Howell Dep. at 25.) Fields, together with Gregory’s wife, son, and estate, brought this section 1983 action contending Officer Howell and the City of Rogers violated Gregory’s. and Fields’s Fourteenth Amendment substantive due process rights. According to the appellants, Officer Howell placed Gregory and Fields in danger by allowing them to remain in the car in front of the police station while waiting for Turner “in spite of their obviously intoxicated condition.” (Am.Compl. ¶¶ 15-16.) The district court, however, concluded the appellants’ claims sounded in negligence and, thus, were insufficient to state a claim under section 1983. Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 663, 88 L.Ed.2d 662 (1986) (holding a government official’s negligent conduct will not support a substantive due process claim under section 1983); Davidson v. Cannon, 474 U.S. 344, 347-48, 106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1986) (same). The district court granted the ap-pellees’ motion for summary judgment and dismissed the appellants’ lawsuit. The appellants appeal from this dismissal. II. To prevail under section 1983, the appellants must show that persons acting under color of state law deprived Gregory and Fields “of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels, 474 U.S. at 330-31, 106 S.Ct. at 664-65. The parties do not dispute that Officer Howell and the City of Rogers acted under color of state law. Thus, our threshold inquiry is whether Officer Howell and the City of Rogers deprived Gregory and Fields of a substantive right arising under the Fourteenth Amendment. Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979); Wells v. Walker, 852 F.2d 368, 370 (8th Cir.1988), cert. denied, 489 U.S. 1012, 109 S.Ct. 1121, 103 L.Ed.2d 184 (1989)." }, { "docid": "16106590", "title": "", "text": "It provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.... 42 U.S.C. § 1983. “Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method for vindicating federal rights conferred elsewhere.’ ” Al- bright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct, 2689, 61 L.Ed.2d 433 (1979)); accord Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); City of Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985); Jackson v. City of Atlanta, 73 F.3d 60, 63 (5th Cir.), cert. denied, 519 U.S. 818, 117 S.Ct. 70, 136 L.Ed.2d 30 (1996); Young v. City of Killeen, 775 F.2d 1349, 1352 (5th Cir.1985). To prevail on a § 1983 claim, the plaintiff must prove that a person acting under the color of state law deprived him of a right secured by the Constitution or laws of the United States. See Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997); Daniels v. Williams, 474 U.S. 327, 330, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Augustine v. Doe, 740 F.2d 322, 324-25 (5th Cir.1984). A § 1983 complainant must support his claim with specific facts demonstrating a constitutional deprivation and may not simply rely on conclusory allegations. See Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995); Fee v. Herndon, 900 F.2d 804, 807 (5th Cir.), cert. denied, 498 U.S. 908, 111 S.Ct. 279, 112 L.Ed.2d 233 (1990); Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir. 1986); Angel v. City of Fairfield, 793 F.2d 737, 739 (5th Cir.1986). Thus, for Casanova to recover, he must show that the defendants deprived him of a right" }, { "docid": "3848009", "title": "", "text": "rights, privileges, or immunities secured by the Constitution and laws, shall be hable to the party injured.... 42 U.S.C. § 1983. “Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method for vindicating federal rights elsewhere conferred.’” Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 145 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)); accord Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); City of Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985); Jackson v. City of Atlanta, 73 F.3d 60, 63 (5th Cir.), cert. denied, 519 U.S. 818, 117 S.Ct. 70, 136 L.Ed.2d 30 (1996); Young v. City of Killeen, 775 F.2d 1349, 1352 (5th Cir.1985); Carbonell v. Louisiana Dep’t of Health & Human Resources, 772 F.2d 185, 188 (5th Cir.1985). To prevail on a § 1983 claim, the plaintiff must prove that a person acting under the color of state law deprived it of a right secured by the Constitution or laws of the United States. See Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997); Daniels v. Williams, 474 U.S. 327, 330, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Augustine v. Doe, 740 F.2d 322, 324-25 (5th Cir.1984). A § 1983 complainant must support its claim with specific facts demonstrating a constitutional deprivation and may not simply rely on eonclusory allegations. See Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir.1995); Fee v. Herndon, 900 F.2d 804, 807 (5th Cir.), cert. denied, 498 U.S. 908, 111 S.Ct. 279, 112 L.Ed.2d 233 (1990); Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir.1986); Angel v. City of Fairfield, 793 F.2d 737, 739 (5th Cir.1986); Elliott v. Perez, 751 F.2d 1472, 1482 (5th Cir.1985). Thus, for Albertson’s to recover, it must show that Weingarten deprived it of a right guaranteed by the Constitution or the laws of the United States. See Daniels, 474 U.S. at 329-31, 106 S.Ct. 662; Baker, 443 U.S. at" }, { "docid": "22789712", "title": "", "text": "in light of the plaintiff’s memorandum, and its supporting documentation, opposing the defendants’ summary judgment motion. To prevail in a civil rights action under 42 U.S.C. § 1983 a plaintiff must show that the defendant, under color of state law, deprived the plaintiff of a right secured by the Constitution and laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct.1908, 1913, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Everett, 833 F.2d at 1510; Dollar v. Haralson County, 704 F.2d 1540, 1542-43 (11th Cir.), cert. denied, 464 U.S. 963, 104 S.Ct. 399, 78 L.Ed.2d 341 (1983). Section 1983 alone creates no substantive rights; rather it provides a remedy for deprivations of rights established elsewhere in the Constitution or federal laws. Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694 n. 3, 61 L.Ed.2d 433 (1979); Wideman v. Shallowford Community Hosp., Inc., 826 F.2d 1030, 1032 (11th Cir.1987). An underlying constitutional right must exist before a § 1983 action will lie. Wideman, 826 F.2d at 1032. Accordingly, our inquiry initially focuses upon the nature of the plaintiff’s constitutional rights allegedly deprived by the defendants. Baker, 443 U.S. at 140, 99 S.Ct. at 2692. A. Liberty Interest as a Youthful Offender Barfield claims that by virtue of his status as a youthful offender, he possessed a constitutional liberty interest in remaining at youthful offender institutions. He asserts that this right was violated when the D.O.C. defendants transferred him to Florida State Prison, a maximum security pris on, without affording him due process of law. The defendants, however, argue that Barfield was merely classified as a youthful offender by the D.O.C., and that the classification created no liberty interest entitling Barfield to remain at a youthful offender facility. Further, they claim that Barfield presented no evidence showing any issues of material fact for trial as to his youthful offender status, and thus, summary judgment was proper. In determining whether Barfield possessed a liberty interest in remaining at a youthful offender institution," }, { "docid": "9866154", "title": "", "text": "(1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). In a typical § 1983 action, a court must initially determine whether the plaintiff has even alleged the deprivation of a right that either federal law or the Constitution protects. See Baker, 443 U.S. at 140, 99 S.Ct. 2689 (“The first inquiry in any § 1983 suit ... is whether the plaintiff has been deprived of a right ‘secured by the Constitution and laws.’ ”). As the Supreme Court recently emphasized, when the defendant in a § 1983 action claims qualified immunity, our first task is to assess whether the plaintiffs allegations are sufficient to establish the violation of a constitutional or statutory right at all. See, e.g., Conn v. Gabbert, 526 U.S. 286, 290, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999); County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). If the plaintiffs allegations meet this threshold, we must next determine whether, as a legal matter, the right that the defendant’s conduct allegedly violates was a clearly established one, about which a reasonable person would have known. If so, then the defendant is not entitled to qualified immunity. If, in contrast, the plaintiffs allegations fail to satisfy either inquiry, then the defendant is entitled to summary judgment. Until the question of qualified immunity is addressed, a court cannot reach the underlying merits of the case. See Harlow v. Fitzgerald, 457 U.S. 800, 813-20, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); see also Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991) (“One of the purposes of immunity, qualified or absolute, is to spare .a defendant not only unwarranted liability but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit.”); Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (“The entitlement is an immunity from suit rather than a mere defense to liability ... and ... is effectively lost if a case is erroneously permitted to go to trial”). In" }, { "docid": "23312280", "title": "", "text": "under 42 U.S.C. § 1983 a plaintiff must show that the defendant, under color of state law, deprived the plaintiff of a right secured by the Constitution and laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Everett, 833 F.2d at 1510; Dollar v. Haralson County, 704 F.2d 1540, 1542-43 (11th Cir.), cert. denied, 464 U.S. 963, 104 S.Ct. 399, 78 L.Ed.2d 341 (1983). Section 1983 alone creates no substantive rights; rather it provides a remedy for deprivations of rights established elsewhere in the Constitution or federal laws. Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2674 n. 3, 61 L.Ed.2d 433 (1979); Wideman v. Shallowford Community Hosp., Inc., 826 F.2d 1030, 1032 (11th Cir.1987). An underlying constitutional right must exist before a § 1983 action will lie. Wideman, 826 F.2d at 1032. Accordingly, our inquiry focuses upon the nature of the plaintiff’s constitutional right allegedly deprived by the defendants. Baker, 443 U.S. at 140, 99 S.Ct. at 2692. A. Nature of Constitutional Right/Liberty Interest Mrs. Cornelius alleges that the defendants deprived her of liberty and property rights secured by the due process clause of the fourteenth amendment. She asserts the right not to be injured in person or property by the state’s gross negligence and deliberate indifference in failing to protect her from the actions of state inmates under the direct supervision of the state’s agents. The plaintiff states that the corrections officials owed her a duty to classify inmates properly to minimum custody status and to assign to community work squads only those inmates eligible for relaxed community supervision. Mrs. Cornelius alleges that these prison officials knew or should have known that inmate Wilson should not have been assigned to the work squad due to his prison record, that other inmates convicted of violent offenses were assigned to the community work squad, and that the community work squad supervisors had no training in corrections. Mrs. Cornelius" }, { "docid": "14429719", "title": "", "text": "and supplemental causes of action under the laws of the Commonwealth of Puerto Rico for breach of contract and unjust enrichment. Defendants have presented a plethora of arguments in their request for dismissal of Plaintiffs’ claims, namely: (1) Co-defendant Arlequn-Vlez in his individual capacity is entitled to qualified immunity; (2) lack of standing of Co-plaintiff Ramrez to sue under Section 1983; (3) Plaintiffs have no property interest; (4) a mere breach of contract is not a deprivation of property without constitutional due process; (5) political affiliation is an appropriate requirement for the professional services contracts at issue; (6) Plaintiffs have failed to state a prima facie case of political discrimination; (7) Plaintiffs’ claims under Section 1983 are time-barred; (8) the Court should abstain under the Younger doctrine; and (9) Plaintiffs’ supplemental law claims should be dismissed. See Dockets ##5, 8, 11 & 15. We will address these arguments in natural order to the extent that it is necessary. I. Section 1983 Section 1983 in itself does not confer substantive rights, but provides a venue for vindicating federal rights elsewhere conferred. See Graham v. M.S. Connor, 490 U.S. 386, 393-394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). In order to establish liability under Section 1983, a plaintiff must first show that “the conduct complained of was committed by a person acting under color of state law.” Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 559 (1st Cir.1989); Saugus v. Voutour, 474 U.S. 1100, 106 S.Ct. 879, 88 L.Ed.2d 916 (1986); Voutour v. Vitale, 761 F.2d 812, 819 (1st Cir.1985). Second, a plaintiff must show that the defendant’s conduct deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States. See Parratt, 451 U.S. at 535, 101 S.Ct. 1908; Gutierrez-Rodriguez, 882 F.2d at 559. This second prong has two aspects: (1) there must have been an actual deprivation of the plaintiffs federally protected rights; and" }, { "docid": "20373732", "title": "", "text": "point out that Section 1983, “is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and the federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). In Baker, the Supreme Court stated that in a Section 1983 claim the first inquiry is whether the plaintiff was deprived of a right protected by the Constitution or the laws of the United States. Id. at 140, 99 S.Ct. 2689. The Supreme Court then proceeded to presume that the plaintiffs “false imprisonment action” was based on the Fourteenth Amendment. The Court said, “[b]ecause respondent’s claim and the Court of Appeals’ decision focus exclusively on respondent’s pro longed detention caused by petitioner’s failure to institute adequate identification procedures, the constitutional provision allegedly violated by petitioners’ action is presumably the Fourteenth Amendment’s protection against deprivations of liberty without due process of law.” Id. at 142, 99 S.Ct. 2689. In Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the Supreme Court reiterated the idea that in actions under Section 1983 courts must identify the constitutional right that was allegedly violated. In Graham, the complaint alleged a violation of the Fourteenth Amendment. However, the Court found that it was in fact a violation of the Fourth Amendment, something the Plaintiff had not alleged. The Court said, “[i]n addressing an excessive force claim brought under § 1983, the analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force.” Id. at 394, 109 S.Ct. 1865 (citing Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). Also, in Daniels v. Williams, 474 U.S. 327, 337, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) the Supreme Court stated, “[w]e should begin by identifying the precise constitutional claims that petitioners have advanced.” Pursuant to Baker, this Court must begin its analysis by identifying the specific constitutional right allegedly infringed. The First Circuit has stated that, “[b]y 1986 it" } ]

[ { "docid": "7591530", "title": "", "text": "made to this port by a vessel owned by Lykes. Thus, since 1947 only five ships with which Lykes has had any connection have visited Philadelphia. The last such vessel left this port more than a month prior to the service of process upon Kurz. Qualitatively, the defendant is doing business in Pennsylvania when it transports cargo to arid from Philadelphia. Jenkins v. Lykes Bros. S. S. Co. et al., D.C., 48 F.Supp. 848; Holland v. Parry Nav. Co., Inc., D.C., 7 F.R.D. 471. Quantitatively, however, I think that the defendant is not doing business in Pennsylvania. In Jenkins v. Lykes Bros. S. S. Co., Inc. supra, thirty-five ships called at this port during a two year period. In Holland v. Parry Nav. Co., Inc., supra, twenty ships stopped here during a two and one-half year period. The frequency of the visits in those cases established Philadelphia as a regular or habitual port of call. But in this case only five vessels with which the defendant has had any connection have stopped here during the last three years. This infrequency paints as vivid a picture of occasional or sporadic activity as the Jenkins and Holland cases painted a picture of regular or habitual activity. For this reason, I find that the defendant Lykes is not doing business within the Eastern District of Pennsylvania. Holliday, Adm’x, v. Pacific Atlantic Steamship Corp., 1945 A.M.C. 49, affirmed 354 Pa. 271, 47 A.2d 254. Moreover, at the time the service of the summons and complaint was made upon Kurz on April 4, 1949, Kurz was not acting as agent for Lykes. The last vessel of the defendant’s to visit Philadelphia had left on March 1, 1949. For this reason also, the service of process is invalid. Holland v. Parry Nav. Co., Inc., supra; Holli day, Adm’x v. Pacific Atlantic Steamship Corp., supra. Accordingly, the motion of the defendant Lykes Bros. Steamship Co., Inc. to vacate the service of the summons and complaint is hereby granted. . The defendant’s correct name, as shown by an affidavit filed by the defendant, is Lykes Bros. Steamship Co.," } ]

[ { "docid": "3205310", "title": "", "text": "an individual is “a managing or general agent” depends on a factual analysis of that person’s authority within the organization. 2 Moore’s Federal Practice [f 4.22[2]. One occuping this position typically will perform duties which are “sufficiently necessary” to the corporation’s operations. Goldberg v. Mutual Readers League, Inc., 195 F.Supp. 778, 783 (E.D.Pa.1961). He should be “a responsible party in charge of any substantial phase” of the corporation’s activity, Remington Rand, Inc. v. Knapp-Monarch Co., 139 F.Supp. 613, 621 (E.D.Pa.1956); Lone Star Package Car Co. v. Baltimore & Ohio R.R., 212 F.2d 147, 152 (5 Cir. 1954). In brief, it is reasonable to expect that such an agent will have broad executive responsibilities and that his relationship will reflect a degree of continuity. See Aquascutum of London, Inc. v. S. S. American Champion, 426 F.2d 205 (2 Cir. 1970); see also Young v. Albert Pick Hotels, 126 U.S.App.D.C. 155, 375 F.2d 331 (1967). Authority to act as agent sporadically or in a single transaction ordinarily does not satisfy this provision of the Rule. Zhemeck v. J. H. Winchester & Co., 23 F.R.D. 8 (E.D.Pa.1958). Holland v. Parry Navigation Co., 7 F.R.D. 471 (E.D.Pa. 1947). The district court characterized Wechsler as a “transactional agent” instead of the “managing or general agent,” and our independent examination of the record does not persuade us that Wechsler was shown to occupy the status designated by Rule 4(d) (3). Indeed, plaintiffs offered no testimony to support the validity of the service. Thus, the record' before us is limited to the pleadings which constituted the sole record before the district court at the time the issue was decided. Those pleadings show that the agreement between the parties was signed by the president and the secretary of Sandia American and not by Wechsler. The complaint did not aver that Wechsler was a managing or general agent, but simply “an agent for SANDIA and authorized by SANDIA to negotiate the acquisition of WORLD WIDE.” The defendants’ answer denied that Wechsler “was anything but tax counsel in negotiating the exchange of the stock.” The transfiguration of service on Wechsler" }, { "docid": "3205311", "title": "", "text": "J. H. Winchester & Co., 23 F.R.D. 8 (E.D.Pa.1958). Holland v. Parry Navigation Co., 7 F.R.D. 471 (E.D.Pa. 1947). The district court characterized Wechsler as a “transactional agent” instead of the “managing or general agent,” and our independent examination of the record does not persuade us that Wechsler was shown to occupy the status designated by Rule 4(d) (3). Indeed, plaintiffs offered no testimony to support the validity of the service. Thus, the record' before us is limited to the pleadings which constituted the sole record before the district court at the time the issue was decided. Those pleadings show that the agreement between the parties was signed by the president and the secretary of Sandia American and not by Wechsler. The complaint did not aver that Wechsler was a managing or general agent, but simply “an agent for SANDIA and authorized by SANDIA to negotiate the acquisition of WORLD WIDE.” The defendants’ answer denied that Wechsler “was anything but tax counsel in negotiating the exchange of the stock.” The transfiguration of service on Wechsler into a valid service on the corporation is made even more difficult by the facts reported on the marshal’s return. Wechsler was not served as an agent of the corporation, but as an individual defendant. Moreoever, the summons and complaint to be served on the corporation were returned “not found” by the marshal, even though an attempt to find an officer or agent was made at Wechsler’s office. What the marshal reports as “not found,” no court may, without evidentiary or legal support, “find.” A duly organized business corporation enjoys an identity separate and apart from its stockholders, directors, and officers. Kauffman v. Dreyfus Fund, Inc., 434 F.2d 727 (3d Cir. 1970). The law’s recognition of this separate identity is the very concept which has stimulated and encouraged the development and proliferation of corporations in the business community. Historically, a corporation was held incapable of legal “existence” outside the state whose laws chartered it. The modern view is that a corporation “exists” anywhere it is doing business and that it may there be amendable to" }, { "docid": "16708800", "title": "", "text": "on the instructions of Winchester & Co. Lavino’s activities with respect to the Josefina included obtaining stores, arranging for repairs, tugs, and docking, and redelivery of the ship from the charterer. Lavino presumably acted similarly with respect to the Barbara Freitche. Lavino’s last transaction involving either vessel was the sending of the disbursement account of the Josefina on December 26,1956. There was no continuing agency agreement with Lavino, and arrangements were made individually as each ship was bound for Philadelphia. Beyond the facts above stated, the only evidence that Lavino was agent for the defendants at those times consists of statements in the marshal’s returns that Lavino was served “as agent.” F.R.Civ.P. 4(d) (3), 28 U.S.C. authorizes service “Upon a domestic or foreign corporation or upon a partnership * * by delivering [the process] * * * to * * * a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process * * I find this evidence insufficient to establish that at the time when process was served on it Lavino was the agent of Winchester or Liberty, and since it was not then their agent the service was invalid. Holland v. Parry Navigation Co., D.C.E.D.Pa.1947, 7 F.R.D. 471.' The motions of Liberty Navigation and Trading Co., Inc. to set aside service in both actions will be granted. The motion of J. H. Winchester & Co. to set aside service in the civil action will be granted. The motions to dismiss will be refused. Thompson v. Trent Maritime Company, D.C.E.D.Pa.1957, 149 F.Supp. 468. The motion of Liberty Navigation and Trading Co., Inc. for leave to file an amended affidavit is granted." }, { "docid": "23495840", "title": "", "text": "described under (1) above in a document filed May 17, 1957. . See Stipulation filed July 23, 1957. . See, also, Werner v. Clingerman, 1936, 28 Pa.Dist. & Co.R. 209; Bozurich. v. Bollinger, 85 Pittsb.Leg.J. 795 (1936); cf. Croll & Keck, Inc. v. Landy, 1954, 3 Pa.Dist. & Co.R.2d 513; 1 GoodrichAmram Civil Practice, Commentary to Rules, § 2079(a) — 2, p. 59. The dictum from Wax v. Van Marter, 1937, 124 Pa. Super. 573, 577, 189 A. 537, 539, relied on in Croll & Keck, Inc. v. Landy, supra, is predicated upon there being “a reasonable probability that the requirements of the -statute were complied with.” The sentence of the Superior Court’s decision following that quoted by the Berks County Court in Croll & Keck, Inc. v. Landy, supra, states: “In the present case, the plaintiff followed the provisions of the statute; he ,could do no more.” In this case, the plaintiff did not follow the provisions of the statute. This court is bound by the appellate court decisions of Pennsylvania in this diversity case. Also, it is noted that the policy behind statutes involved in the Croll & ■Keck decision and the facts of that case differ from those in this case. . It is noted also that this court has: adopted the rule that the above-mentioned Pennsylvania Nonresident Motorist Act is ineffective where the plaintiff is a non-resident. See Lambert v. Doyle, D.C.E.D.Pa.1947, 70 F.Supp. 990. But cf. Greene v. Goodyear, D.C.M.D.Pa.1953, 112 F.Supp. 27, and cases there cited. However, this and other objections to the service of process raised by defendant O’Leary need not be considered in view of the failure to follow the terms of 75 P.S. § 1202 by serving a process on the nonresident defendant containing the required endorsement that service is also: made on the Secretary of the Commonwealth. . See Tozer v. Charles A. Krause Milling Co., 3 Cir., 1951, 189 F.2d 242; Chapman v. Henry A. Dreer, Inc., D.C.E.D.Pa.1953, 14 F.R.D. 218; Elias v. Pitucci, D.C.E.D.Pa.1952, 13 F.R.D. 13; Soriano v. American Liberty Steamship Corp., D.C.E.D.Pa.1952, 13 F.R.D. 485. See," }, { "docid": "3229894", "title": "", "text": "EGAN, District Judge. The defendant has moved to set aside service of the summons and complaint and to dismiss the action on the ground that neither service of the summons and complaint on Charles Kurz Company nor service of an alias summons and complaint on the Secretary of the Commonwealth of Pennsylvania was a valid service on the defendant, a non-resident of Pennsylvania. The plaintiff originally made service on Charles Kurz Company, a corporation engaged in the business of acting as agent for owners, charterers, and operators of steamships, with its offices and principal place of business in Philadelphia. Subsequently the plaintiff caused service to be made upon the Secretary of the Commonwealth of Pennsylvania, under the provisions of the Pennsylvania Nonresident Motorist Act (75 P.S. § 1201). The plaintiff argues that (1) service on Charles Kurz Company was effective as service on the defendant since Charles Kurz Company was the general agent of the defendant, and (2) the defendant is subject to service under the Nonresident Motorist Act. The plaintiff was employed as a longshoreman aboard the defendant’s ship S.S. Louis Pasteur in March 1958 when the ship was docked in Philadelphia. He claims that while so employed he suffered personal injuries resulting from the unseaworthy condition of the ship and from the negligence of the defendant. The defendant, sole owner of the ship on which the alleged injuries occurred, is an individual residing in Naples, Italy. The ship involved has visited the port of Philadelphia on three occasions within the last five years: November 1954, September 1955, and March 1958. On each occasion a different shipping agency acted as agent for the charterer of the ship, attending to all business matters arising from the ship’s presence in the Philadelphia port. In March 1958, that agent was Charles Kurz Company, acting for the charterer, Campsider, of Milan, Italy. No other ship connected with the defendant has been in Pennsylvania within the past five years. Other than for the three visits of his ship to Philadelphia in that period, the defendant has done no business in Pennsylvania. He has no" }, { "docid": "4955752", "title": "", "text": "steamship company’s activities can be said to be continuous, and to follow a regular and habitual pattern, as distinguished from occasional or sporadic activities. Jenkins v. Lykes Bros. S. S. Co., D.C., 48 F.Supp. 848; The Hanover, D.C., 6 F.2d 335; Marcum v. Owens-Parks Lumber Co., D.C., 31 F.Supp. 748. The defendant does not here contend that it is not doing business, qualitatively speaking, in Pennsylvania. Quantitatively speaking, I think that, judging from the number of vessels operated by defendant which have put in at the Port of Philadelphia during recent years, and the intervals between their visits, the conclusion is justified that the defendant is doing sufficient business in Pennsylvania to make it amenable to service of process in this jurisdiction. The defendant’s second contention is that service on Rice as Parry’s agent is legally insufficient to constitute service on Parry. The plaintiff, on the other hand, contends that service on Rice is legally sufficient to constitute service on Parry under either Rule 4(d) (3) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, or under Rule 2180 of the Pennsylvania Rules of Civil Procedure, 12 P.S.Appendix. Both Federal Rule 4(d) (3) and Rule 2180 of the Pennsylvania Rules provide for service upon a corporation by serving certain enumerated agents of the corporation. We are thus faced with the problem of whether Rice was in fact an. agent of Parry at the time of the service in the instant case. I think that on May 23, 1946, when service was made on Rice, there was no relationship of principal and agent in existence between Parry and Rice. As I have previously indicated, Rice performed duties for Parry on a ship to ship basis. It seems to me that the nature of the authority conferred upon Rice by Parry can be viewed in either of two ways: First, that the authority was to exist for a specific time — namely, the duration of the vessel’s stay in the Port of Philadelphia, plus any length of time prior to its arrival or subsequent to its departure during which" }, { "docid": "3229896", "title": "", "text": "employees or representatives in Pennsylvania, and he owns no property here. On January 8, 1959, when service of the summons and complaint was attempted by the United States Marshal on Charles Kurz Company, no vessel owned or operated by the defendant was in Pennsylvania. On that date Charles Kurz Company waS'.not engaged in the performance of any services whatsoever for the defendant. The issue is whether the relationship of Charles Kurz Company, as agent for the charterer of the defendant’s ship at the time of the alleged injury on which this action is based, was such as to make it the defendant shipowner’s agent for service of legal process. We conclude that it was not. At the time the complaint was served on Charles Kurz Company, it was no longer engaged in performing services as agent for the defendant’s ship. As there is no showing of any permanent or continuing relationship between the Kurz Company and the defendant, it cannot be said that the Kurz Company was the defendant’s agent on whom service could be made with binding force. Zhemeck v. J. H. Winchester & Co., D.C.E.D.Pa.1958, 23 F.R.D. 8; Higgins v. California Tanker Co., D. C.E.D.Pa.1957, 166 F.Supp. 569; Novitski v. Lykes Steamship Co., D.C.E.D. Pa.1950, 90 F.Supp. 971; Holland v. Parry Navigation Co., D.C.E.D.Pa.1947, 7 F.R.D. 471. Furthermore, even if the Kurz Company were the defendant’s agent, it is clear from the facts stated above that the defendant has not been doing business in this State so as to subject him to service of process. Higgins v. California Tanker Co., supra; Novitski v. Lykes Steamship Co., supra. We turn now to the plaintiff’s contention that the defendant shipowner Is subject to the provisions of the Pennsylvania Nonresident Motorist Act. The question is whether the defendant’s ship is a motor vehicle within the meaning of the statute. While a liberal construction of the statute might permit such a finding, we are bound by the Pennsylvania rule that statutes providing for substituted service must be strictly construed. McCall v. Gates, 1946, 354 Pa. 158, 161, 47 A.2d 211; Williams v." }, { "docid": "7591528", "title": "", "text": "BARD, District Judge. This case is now before me on the defendant’s motion to vacate the service of the summons and complaint. On March 29, 1949 the plaintiff, a seaman, filed a complaint against Lykes Steamship Company (hereinafter called Lykes) for injuries allegedly sustained through the negligence of the defendant’s agents and employees and for maintenance and cure. On April 4, 1949 service of the summons and a copy of the complaint was made upon Chas. Kurz Co. (hereinafter called Kurz) at the latter’s office in Philadelphia, Pennsylvania, on the theory that Kurz was Lykes’ agent. The defendant disputes the validity of this service of process on the grounds that it is not “doing business” within the jurisdiction of this Court. The defendant Lykes is a Louisiana corporation which has its office and principal place of business in New Orleans, Louisiana. Its vessels normally ply between United States Gulf ports and South America. The defendant is not and never has been registered to do business within the Commonwealth of Pennsylvania. It has no office or registered -agent within Pennsylvania, nor does it have any employees in Pennsylvania. . Kurz is a ship brokerage firm which has an office in Philadelphia. Whenever one of the defendant’s vessels of a government vessel which the defendant was husbanding would come into the Port of Philadelphia, the defendant would request Kurz to act as the defendant’s agent to handle -and service that vessel. In each such instance the contract for handling the ship was on per ship basis, and payment was made accordingly. There never was any contract or agreement, either written or oral, establishing a continuing agency relationship between Kurz and the defendant Lykes. In 1946 seven visits were made to this port by vessels for which Lykes was the government’s General Agent. In 1947 one visit was made to this port by a vessel for which Lykes was the government’s General Agent, and two visits were made by vessels owned by Lykes. In 1948 one visit was made to this port by a vessel owned by Lykes. In 1949 one visit was" }, { "docid": "11640805", "title": "", "text": "1956, and a third such vessel under charter discharged cargo twice in this district in 1957. Texas is not authorized to accept service of process for defendant, has only acted for defendant when its vessels were in the port of Philadelphia, and was not acting for defendant when service was made. Under these facts, it is clear that the defendant’s occasional and sporadic activity in this district is not sufficient to subject it to service of process. See Novitski v. Lykes Steamship Co., D.C.E.D.Pa.1950, 90 F. Supp. 971. Also, it is clear that the service on Texas was ineffective under F. R.Civ.P. 4(d), 28 U.S.C.A., even if defendant was doing business here, under the decisions of this court since Texas was not acting as agent for defendant at the time of service. See Holland v. Parry Nav. Co., Inc., D.C.E.D.Pa.1947, 7 F.R.D. 471, 472-473. The undersigned believes that defendant is entitled to the dismissal of a •civil action in a case such as this, brought by a non-resident plaintiff involving an alleged injury on the high seas, where defendant was not doing business in this district at the time the Complaint was filed, at the time the service was made, or at the time of the argument on defendant’s Motion to Dismiss. Philadelphia & Reading Railway Co. v. McKibbin, 1917, 243 U.S. 264, 37 S.Ct. 280, 61 L.Ed. 710; James-Dickinson Farm Mortg. Co. v. Harry, 1927, 273 U.S. 119, 47 S.Ct. 308, 71 L.Ed. 569; Cannon Mfg. Co. v. Cudahy Co., 1925, 267 U.S. 333, 45 S.Ct. 250, 69 L.Ed. 634; Orange Theatre Corp. v. Rayherstz Amusement Corp., 3 Cir., 1944, 139 F.2d 871, 875. . Paragraphs 4 ancl 5 of Affidavit of Ervin, attached to the Motion, provide: “4. On some occasions when its vessels call at the Port of Philadelphia, Texas Transport & Terminal Co., Inc. have been designated to attend to owner’s business during the particular time when such vessel may be in port, but there is no written or oral agreement between the defendant and that company whereby it is designated to act as agent for" }, { "docid": "11640804", "title": "", "text": "VAN DUSEN, District Judge. This case (filed in July 1957) comes before the court on defendant’s Motion To Set Aside Service and Dismiss the Complaint (Document No. 4 in Clerk’s file). The Complaint alleges that plaintiff (an oiler) received in 1955 personal injuries at sea aboard the S. S. Kettle Creek due to unseaworthiness of this vessel, then owned by defendant, and to the negligence of defendant. The record discloses that defendant is a Delaware corporation, having a place of business in Perth Amboy, New Jersey, and no business or property in this jurisdiction at the time service was made on Texas Transport & Terminal Co., Inc., steamship agents (hereinafter called “Texas”). During the period since January 11,1955, defendant has operated no more than four vessels, chiefly for its own account (at which time the vessels never entered this district), and occasionally chartered them to outside interests for single voyages. One such vessel under charter discharged cargo once in this district in 1955, another such vessel under charter discharged cargo once in the district in 1956, and a third such vessel under charter discharged cargo twice in this district in 1957. Texas is not authorized to accept service of process for defendant, has only acted for defendant when its vessels were in the port of Philadelphia, and was not acting for defendant when service was made. Under these facts, it is clear that the defendant’s occasional and sporadic activity in this district is not sufficient to subject it to service of process. See Novitski v. Lykes Steamship Co., D.C.E.D.Pa.1950, 90 F. Supp. 971. Also, it is clear that the service on Texas was ineffective under F. R.Civ.P. 4(d), 28 U.S.C.A., even if defendant was doing business here, under the decisions of this court since Texas was not acting as agent for defendant at the time of service. See Holland v. Parry Nav. Co., Inc., D.C.E.D.Pa.1947, 7 F.R.D. 471, 472-473. The undersigned believes that defendant is entitled to the dismissal of a •civil action in a case such as this, brought by a non-resident plaintiff involving an alleged injury on the" }, { "docid": "7649736", "title": "", "text": "by adverse weather conditions. In such a situation it was held that the shipowner was not “doing business” in that state because it had not entered the state in the course of its regular business. United States v. Tug Parris Island, 215 F.Supp. 149 (E.D.N.C.1963). . Wingert v. Navarie Aznar, S.A. Bilbao, 196 F.Supp. 585 (D.Or.1961) (30). . Alcalde v. The Los Mayas, 184 F.Supp. 873 (E.D.Va.1960); Higgins v. California Tanker Co., 166 F.Supp. 569 (E.D. Pa.1957); Novitski v. Lykes Steamship Co., 90 F.Supp. 971 (E.D.Pa.1950); L. H. Hamel Leather Co. v. Steamship City of Auckland, 1957 A.M.C. 89 (D.Mass. 1948) (The opinion made no reference to any case decided after 1941). . Rutter v. Louis Dreyfus Corp., 181 F. Supp. 531 (E.D.Pa.1960); Wade v. Romano, 179 F.Supp. 72 (E.D.Pa.1959). . See National Equipment Rental v. Szukhent, 375 U.S. 311, 315, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964), where Justice Stewart indicated that the actual receipt of notice will moot questions of its adequacy when service is made pursuant to Federal Rule of Civil Procedure 4(d) (1). Quaere whether this reasoning applies when a state service procedure is used for federal purposes pursuant to Federal Rule of Civil Procedure 4(d) (7)." }, { "docid": "4955751", "title": "", "text": "1946, the date when service was made on Rice, the latter acted on behalf of Parry in connection with seven vessels which arrived in this port. Rice did not act with respect to any vessel with which Parry had any connection between May 12, 1946 and the date of service of process, nor was any vessel with which Parry had any connection in the Port of Philadelphia, or within this jurisdiction, on May 23, 1946. The first contention of the defendant Parry is that it is not doing business in Pennsylvania. However, I think that the facts which I have recited above refute this contention. I do not think that it is possible to lay down any hard and fast rule as to how may vessels operated by a steamship company must call at a port during a given period of time in order to say that the steamship company is “doing business” in the state where the port is located. The test seems to be whether, under the circumstances of a given case, the steamship company’s activities can be said to be continuous, and to follow a regular and habitual pattern, as distinguished from occasional or sporadic activities. Jenkins v. Lykes Bros. S. S. Co., D.C., 48 F.Supp. 848; The Hanover, D.C., 6 F.2d 335; Marcum v. Owens-Parks Lumber Co., D.C., 31 F.Supp. 748. The defendant does not here contend that it is not doing business, qualitatively speaking, in Pennsylvania. Quantitatively speaking, I think that, judging from the number of vessels operated by defendant which have put in at the Port of Philadelphia during recent years, and the intervals between their visits, the conclusion is justified that the defendant is doing sufficient business in Pennsylvania to make it amenable to service of process in this jurisdiction. The defendant’s second contention is that service on Rice as Parry’s agent is legally insufficient to constitute service on Parry. The plaintiff, on the other hand, contends that service on Rice is legally sufficient to constitute service on Parry under either Rule 4(d) (3) of the Federal Rules of Civil Procedure, 28 U.S.C.A." }, { "docid": "5052350", "title": "", "text": "effects in the hands of the garnishees named in the complaint to the amount sued for, if the defendant shall not be found within the district. Supp. R. B., Fed. R. Civ. P. The rule does not define “found within the district.” However, in cases construing Rule B’s precursor, Admiralty Rule 2, the requirement presented a two-pronged inquiry: first, whether the respondent could be found within the district in terms of jurisdiction, and second, whether it could be found for service of process. 398 F.2d at 874; see generally Grand Bahama Petroleum Co. v. Canadian Transportation Agencies, 450 F.Supp. 447, 452-53 (W.D.Wash.1978). A corporation is found within the court’s jurisdiction if in the recent past it has conducted commercial activity within the district and will probably continue to do so in the future. Oregon Lumber Export v. Tohto Shipping Co., 53 F.R.D. 351 (W.D.Wash.1970). In 1981, the defendant’s vessels made eighteen voyages to Washington ports to take on cargo. These ports included Aberdeen, Kalama, Longview, Port Angeles, Tacoma, Vancouver, and Seattle. By so doing, defendant systematically conducted business within the state and therefore subjected itself to the exercise of the Court’s in personam jurisdiction. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 289, 100 S.Ct. 559, 563, 62 L.Ed.2d 490, 496 (1980); International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Accordingly, the first prong of the test (which plaintiffs do not contest) is met. The test’s second prong, whether Samick could be found for service of process within the district, is sharply contested. Defendant contends it was amenable to service of process through its local port agent, Olympic Steamship Company. Generally, in order to serve a party through its sub-agent, an agent’s actions must be substantial, continual and on more than just a ship-to-ship basis. Marvirason Compania Naviera, S.A. v. H. J. Baker & Bro., 1979 A.M.C. 625, 628 (S.D.N.Y.1978). Although some courts have found that service upon a local port agent providing ordinary husbanding services on a ship-to-ship basis is valid service on a foreign shipowner, see, e.g., Murphy v. Arrow Steamship," }, { "docid": "7649735", "title": "", "text": "claim. The contract in suit was made and allegedly breached by Crescent Lines in New York. For such activities respondent-appellee could clearly be made subject to suit in New York * * See also Kourkene v. American BBR, Inc., 313 F.2d 769, 773 (9th Cir. 1963); L. D. Reeder Contractors of Ariz. v. Higgins Industries, Inc., 265 F.2d 768 (9th Cir. 1959); Developments in the Law— State-Court Jurisdiction, 73 Harv.L.Rev. 909, 926 (1960). . See Blount v. Peerless Chemicals (P. R.) Inc., 316 F.2d 695, 697, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (2d Cir. 1963), cert. denied, 375 U.S. 831, 84 S.Ct. 76, 11 L.Ed.2d 62 (1963): “[T]he state has an interest in subjecting to its judicial process a corporation whose activities in that state expose its residents to a risk of physical harm or economic loss; the state’s interest in regulating such objection able conduct within its borders is apparent even though the plaintiff may be a nonresident * * . Contrast this case with one where the ship was forced into the state by adverse weather conditions. In such a situation it was held that the shipowner was not “doing business” in that state because it had not entered the state in the course of its regular business. United States v. Tug Parris Island, 215 F.Supp. 149 (E.D.N.C.1963). . Wingert v. Navarie Aznar, S.A. Bilbao, 196 F.Supp. 585 (D.Or.1961) (30). . Alcalde v. The Los Mayas, 184 F.Supp. 873 (E.D.Va.1960); Higgins v. California Tanker Co., 166 F.Supp. 569 (E.D. Pa.1957); Novitski v. Lykes Steamship Co., 90 F.Supp. 971 (E.D.Pa.1950); L. H. Hamel Leather Co. v. Steamship City of Auckland, 1957 A.M.C. 89 (D.Mass. 1948) (The opinion made no reference to any case decided after 1941). . Rutter v. Louis Dreyfus Corp., 181 F. Supp. 531 (E.D.Pa.1960); Wade v. Romano, 179 F.Supp. 72 (E.D.Pa.1959). . See National Equipment Rental v. Szukhent, 375 U.S. 311, 315, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964), where Justice Stewart indicated that the actual receipt of notice will moot questions of its adequacy when service is made pursuant to Federal Rule of Civil Procedure" }, { "docid": "3229895", "title": "", "text": "longshoreman aboard the defendant’s ship S.S. Louis Pasteur in March 1958 when the ship was docked in Philadelphia. He claims that while so employed he suffered personal injuries resulting from the unseaworthy condition of the ship and from the negligence of the defendant. The defendant, sole owner of the ship on which the alleged injuries occurred, is an individual residing in Naples, Italy. The ship involved has visited the port of Philadelphia on three occasions within the last five years: November 1954, September 1955, and March 1958. On each occasion a different shipping agency acted as agent for the charterer of the ship, attending to all business matters arising from the ship’s presence in the Philadelphia port. In March 1958, that agent was Charles Kurz Company, acting for the charterer, Campsider, of Milan, Italy. No other ship connected with the defendant has been in Pennsylvania within the past five years. Other than for the three visits of his ship to Philadelphia in that period, the defendant has done no business in Pennsylvania. He has no employees or representatives in Pennsylvania, and he owns no property here. On January 8, 1959, when service of the summons and complaint was attempted by the United States Marshal on Charles Kurz Company, no vessel owned or operated by the defendant was in Pennsylvania. On that date Charles Kurz Company waS'.not engaged in the performance of any services whatsoever for the defendant. The issue is whether the relationship of Charles Kurz Company, as agent for the charterer of the defendant’s ship at the time of the alleged injury on which this action is based, was such as to make it the defendant shipowner’s agent for service of legal process. We conclude that it was not. At the time the complaint was served on Charles Kurz Company, it was no longer engaged in performing services as agent for the defendant’s ship. As there is no showing of any permanent or continuing relationship between the Kurz Company and the defendant, it cannot be said that the Kurz Company was the defendant’s agent on whom service could be" }, { "docid": "7591531", "title": "", "text": "last three years. This infrequency paints as vivid a picture of occasional or sporadic activity as the Jenkins and Holland cases painted a picture of regular or habitual activity. For this reason, I find that the defendant Lykes is not doing business within the Eastern District of Pennsylvania. Holliday, Adm’x, v. Pacific Atlantic Steamship Corp., 1945 A.M.C. 49, affirmed 354 Pa. 271, 47 A.2d 254. Moreover, at the time the service of the summons and complaint was made upon Kurz on April 4, 1949, Kurz was not acting as agent for Lykes. The last vessel of the defendant’s to visit Philadelphia had left on March 1, 1949. For this reason also, the service of process is invalid. Holland v. Parry Nav. Co., Inc., supra; Holli day, Adm’x v. Pacific Atlantic Steamship Corp., supra. Accordingly, the motion of the defendant Lykes Bros. Steamship Co., Inc. to vacate the service of the summons and complaint is hereby granted. . The defendant’s correct name, as shown by an affidavit filed by the defendant, is Lykes Bros. Steamship Co., Inc. . The plaintiff incorrectly alleged in his complaint that the defendant was a New York corporation." }, { "docid": "12640482", "title": "", "text": "a lessee tows a trailer owned by it. Plaintiff relies on Rose v. Gisi, supra, McDonald v. Superior Court, 43 Cal.2d 621, 275 P.2d 464 (Cal.1954), and Bowman v. Atlantic Baggage & Cab Company, 173 F.Supp. 282 (N.D.Fla. 1959). In Rose v. Gisi, supra, two employees were sent into Nebraska in a truck owned by a nonresident, Gisi, in conjunction with his produce and trucking business. In defiance of Gisi’s orders, the employee in charge of the truck allowed another employee to drive the truck and an accident occurred. The Court ruled Gisi’s defense that the employee-driver was performing an act outside the scope of his employment, was sufficient to absolve Gisi of liability, but that Gisi was subject to service under Nebraska’s NonResident Motor Vehicle Statute: “It is clear that the Gisi truck was being used on the highways of Nebraska in the furtherance of the business of Gisi at the direction of Gisi. These acts are sufficient to subject Gisi to the provisions of the nonresident motorists’ law.” 335-336 of 298 N.W. In McDonald v. Superior Court, supra, a nonresident rental company which rented trucks through its agents in California was held amenable to service pursuant to California’s Non-Resident Motorist Statute when a renter sustained injury while unloading one of the trucks. The Court said at 466 of 275 P.2d: “We conclude therefore that petitioner’s agents operated the truck within the meaning of the statute when they rented it for immediate use upon the highways of this state.” In Bowman v. Atlanta Baggage & Cab Company, supra, defendant nonresident company rented a truck to another nonresident company which allowed its employee to drive the vehicle into Florida in contravention of the lease agreement between the companies. An accident ensued and the lessor nonresident company was held subject to service under the Florida Non-Resident Motorist Statute. The Court held that under Florida law the lessor “consented” to creation by the lessee of the right of action and the lessor would not be heard to say that such “consent” was lacking for service of process under the Non-Resident Motorist Statute." }, { "docid": "23495841", "title": "", "text": "case. Also, it is noted that the policy behind statutes involved in the Croll & ■Keck decision and the facts of that case differ from those in this case. . It is noted also that this court has: adopted the rule that the above-mentioned Pennsylvania Nonresident Motorist Act is ineffective where the plaintiff is a non-resident. See Lambert v. Doyle, D.C.E.D.Pa.1947, 70 F.Supp. 990. But cf. Greene v. Goodyear, D.C.M.D.Pa.1953, 112 F.Supp. 27, and cases there cited. However, this and other objections to the service of process raised by defendant O’Leary need not be considered in view of the failure to follow the terms of 75 P.S. § 1202 by serving a process on the nonresident defendant containing the required endorsement that service is also: made on the Secretary of the Commonwealth. . See Tozer v. Charles A. Krause Milling Co., 3 Cir., 1951, 189 F.2d 242; Chapman v. Henry A. Dreer, Inc., D.C.E.D.Pa.1953, 14 F.R.D. 218; Elias v. Pitucci, D.C.E.D.Pa.1952, 13 F.R.D. 13; Soriano v. American Liberty Steamship Corp., D.C.E.D.Pa.1952, 13 F.R.D. 485. See, also, F.R.Civ.P. rules 55(c) and 60 (b). . It is noted that even if the procedure followed in the Oroll & Keck decision of staying proceedings (rather than setting aside the service) were adopted here, it would appear that defendant could raise her venue objections after receipt of the process served in compliance with the statutory requirements. In any event, the procedure being followed here appears to the undersigned to be required by the Pennsylvania appellate court decisions cited above. Service was made under F.R.Civ.P. 4(d) (7)." }, { "docid": "5052351", "title": "", "text": "systematically conducted business within the state and therefore subjected itself to the exercise of the Court’s in personam jurisdiction. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 289, 100 S.Ct. 559, 563, 62 L.Ed.2d 490, 496 (1980); International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Accordingly, the first prong of the test (which plaintiffs do not contest) is met. The test’s second prong, whether Samick could be found for service of process within the district, is sharply contested. Defendant contends it was amenable to service of process through its local port agent, Olympic Steamship Company. Generally, in order to serve a party through its sub-agent, an agent’s actions must be substantial, continual and on more than just a ship-to-ship basis. Marvirason Compania Naviera, S.A. v. H. J. Baker & Bro., 1979 A.M.C. 625, 628 (S.D.N.Y.1978). Although some courts have found that service upon a local port agent providing ordinary husbanding services on a ship-to-ship basis is valid service on a foreign shipowner, see, e.g., Murphy v. Arrow Steamship, 124 F.Supp. 199, 1954 A.M.C. 1423 (E.D.Pa.1954), the majority of courts have held that subagents or husbanding agents are not authorized to accept service of process which will bind the vessel’s owner. See Serpe v. Eagle Ocean Transport Agency Co., 53 F.R.D. 21, 1971 A.M.C. 748 (E.D.Wis.1971); Amicale Industries, Inc. v. The S.S. Rantum, 259 F.Supp. 534, 1967 A.M.C. 96 (D.S.C.1966). Having reviewed the file and the briefs herein, I find that the defendant could not be found with reasonable diligence within the district for service. Tug GO GETTER at 398 F.2d 874. Before the SAMICK ATLANTIC was attached, plaintiff’s counsel checked the following in an unsuccessful attempt to locate the defendant in the district: (1) the 1981 List of Active Corporations in the State of Washington, (2) the 1980 Coast Marine Transportation Directory, (3) the 1979-80 Pacific Coast Maritime Directory, (4) Pacific Northwest Bell telephone book and the Information operators, (5) Pacific Marine Directory, (6) Shipping News Directory, (7) Lloyd’s Shipping Directory, (8) Northwest Shipping Directory, and (9) the Seattle City Directory. Counsel also" }, { "docid": "3229897", "title": "", "text": "made with binding force. Zhemeck v. J. H. Winchester & Co., D.C.E.D.Pa.1958, 23 F.R.D. 8; Higgins v. California Tanker Co., D. C.E.D.Pa.1957, 166 F.Supp. 569; Novitski v. Lykes Steamship Co., D.C.E.D. Pa.1950, 90 F.Supp. 971; Holland v. Parry Navigation Co., D.C.E.D.Pa.1947, 7 F.R.D. 471. Furthermore, even if the Kurz Company were the defendant’s agent, it is clear from the facts stated above that the defendant has not been doing business in this State so as to subject him to service of process. Higgins v. California Tanker Co., supra; Novitski v. Lykes Steamship Co., supra. We turn now to the plaintiff’s contention that the defendant shipowner Is subject to the provisions of the Pennsylvania Nonresident Motorist Act. The question is whether the defendant’s ship is a motor vehicle within the meaning of the statute. While a liberal construction of the statute might permit such a finding, we are bound by the Pennsylvania rule that statutes providing for substituted service must be strictly construed. McCall v. Gates, 1946, 354 Pa. 158, 161, 47 A.2d 211; Williams v. Meredith, 1937, 326 Pa. 570, 192 A. 924, 115 A.L.R. 890; Breskman v. Williams, D.C.E.D.Pa.1957, 154 F. Supp. 51; see 46 P.S. § 558(8). Accordingly, we hold that the defendant’s ship is not a motor vehicle within the contemplation of the Nonresident Motorist Act and that service could not be made on the defendant under that statute. The motion to set aside service of the summons and complaint will be granted. Counsel for defendant will submit an appropriate order." } ]

[ { "docid": "22603811", "title": "", "text": "in that year, by the receiver to the company. United States v. North American Oil Consolidated, 242 Fed. 723. The Government took an appeal (without supersedeas) to the Circuit Court of Appeals. In 1920, that Court affirmed the decree. 264 Fed. 336. In 1922, a further appeal to this Court was dismissed by stipulation. 258 U. S. 633. The income earned from the property in 1916 had been entered on the books of the company as its income. It had not been included in its original return of income for 1916; but it was included in an amended return for that year which was filed in 1918. Upon auditing the company’s income and profits tax returns for 1917, the Commissioner of Internal Revenue determined a deficiency based on other items. The company appealed to the Board of Tax Appeals. There, in 1927 the Commissioner prayed that the deficiency already claimed should be increased so as to include a tax on the amount paid by the receiver to the company in 1917. The Board held that the profits were taxable to the receiver as income of 1916; and hence made no finding whether the company’s accounts were kept on the cash receipts and disbursements basis or on the accrual basis. 12 B. T. A. 68. The Circuit Court of Appeals held that the profits were taxable to the company as income of 1917, regardless of whether the company’s returns were made on the cash or on the accrual basis. 50 F. (2d) 752. This Court granted a writ of certiorari. 284 U. S. 614. It is conceded that the net profits earned by the property during the receivership constituted income. The company contends that they should have been reported by the receiver for taxation in 1916; that if not returnable by him, they should have been returned by the company for 1916, because they constitute income of the company accrued in that year; and that if not taxable as income of the company for 1916, they were taxable to it as income for 1922, since the litigation was not finally terminated" } ]

[ { "docid": "20071958", "title": "", "text": "INCLUDED. (a) General Rule. — The amount of all Items of gross Income shall be Included In the gross Income for the taxable year In which received by the taxpayer, unless, under methods of accounting permitted under section 41, any such amounts are to be properly accounted for as of a different period. In the case of the death of a taxpayer whose net Income is computed upon the basis of the accrual method of accounting, amounts (except amounts includible in computing a partner’s net income under section 182) accrued only by reason of the death of the taxpayer shall not be included in computing net Income for the period in which falls the date of the taxpayer’s death. Regs. 118, sec. 39.126(a)-l(f). If the right to receive an amount of Income in respect of a decedent is transferred by the estate or the person entitled to such amount by bequest, devise, or inheritance, or by reason of the death of the de.cedent, the fair market value of such right at the date of the transfer shall be included in the Income of the estate or of such person, plus the amount by which any consideration received on such transfer exceeds the fair market value of such right. Thus, upon a sale of such right, the fair market value of the right or the amount received upon the sale, whichever is greater, is included in Income. Similarly, if the right to receive the income is disposed of, as by gift or bequest, the fair market value of such right at the time of such disposition must be included in the gross income of the donor, testator, or other trans-feror. * * * The record nowhere specifically shows the amounts received by Jacques under the award. Presumably he received 26% per cent of the total payments made on the award during 1948, 1949, and 1952, less the one-half of 1 per cent deduction provided for under the War Claims Act, since the record shows that he was recognized during these years by the Commissioner of Accounts of the Treasury Department as" }, { "docid": "22228398", "title": "", "text": "distributed or not, in the partner’s computation of his own net income, put a partner on an accrual basis in accounting for partnership earnings, irrespective of § 42. Consequently § 42 was held not to affect the partnership accounting practices. It was further determined that it was the right to receive payment which made an earning accrue and that, as Mr. Enright under the partnership agreement had no right to receive anything from the firm except his proportionate share of the cash receipts, these cash receipts were all that “accrued” to him before his death. The last sentence of § 42 which requires the inclusion of “amounts accrued up to the date of his death” in computing net income for the period in which his death falls was added by the 1934 Revenue Act. The reports recommended its addition because the “courts have held that income accrued by a decedent on the cash basis prior to his death is not income to the estate, and under the present law, unless such income is taxable to the decedent, it escapes income tax altogether.” So § 42 was drawn, to require the inclusion of all amounts accrued to the date of death “regardless of the fact that he may have kept his books on a cash basis.” ****** With the declared purpose of Congress in mind, we proceed to examine the meaning of the section. As the questioned items of unfinished work appear in the partnership accounts, we must determine whether such earnings, even if accruable, are includible in the partner’s return for 1934. Respondent argues, as the Circuit Court of Appeals held, that § 182 accrues, without any effect from the language of § 42, all the earnings that are includible in a partner’s return, and that since the partnership method of keeping its books did not treat unfinished business as receipts, only the earnings actually collected are a part of the partner’s distributive share under § 182. We think such a conclusion is erroneous. The partnership agreement and the subsequent arrangement between the executors and the surviving partners called for" }, { "docid": "6883437", "title": "", "text": "collectively embody do not establish such a •definition. To the contrary, in each of the cases cited which is relevant, the Supreme Court used as its starting point generally accepted methods of accrual accounting for earned income. In North American Oil Corp. v. Bur-net, supra, the government and the petitioner disputed the ownership of certain property, and a receiver was appointed pending a determination. In the year 1916 under the control of the receiver the property produced a profit. In 1917 the court battle was resolved in petitioner’s favor at the trial level, and the receiver consequently paid over the sums representing the profit of 1916. The oil company sought to treat this profit, which it conceded was earned income in any event, as income in the year 1916. The Commissioner asserted that the fund constituted income to the company in 1917, when it first received it under a claim of right. The company •countered with the argument that if the fund was not income to it in 1916, it could not be considered as income until 1922 when the right to retain it became final with the completion of all appellate processes. The Supreme Court dismissed the assertion that the income was taxable to the company in 1916 since it “was not required in 1916 to report as income an amount which it might never receive” (286 U.S. at page 423, 52 S.Ct. at page 615). As between the remaining years, 1917 and 1922, the Court held the income taxable in 1917. “If a taxpayer receives earnings under a claim of right and without restriction as to its disposition, he has received income which he is required to return, even though it may still be claimed that he is not entitled to retain the money, and even though he may still be adjudged liable to restore its equivalent” (286 U.S. at page 424, 52 S.Ct. at page 615). [Emphasis added.] It is plain that this case does not concern the question of the propriety of the deferral of unearned receipts. The petitioner asserted only that the existence of a" }, { "docid": "23327537", "title": "", "text": "be properly accounted for as of a different period. In the case of the death of a taxpayer whose net income is computed upon the basis of the accrual method of accounting, amounts (except amounts includible in computing a partner’s net income under section 182) accrued only by reason of the death of the taxpayer shall not be included in computing net income for the period in which falls the date of the taxpayer’s death.” . Sec. 29.41-1. Computation of net income. Net income must be computed with respect to a fixed period. Usually that period is 12 months and is known as the taxable year. * * * If the method of accounting regularly employed by him in keeping his books clearly reflects his income, it is to be followed with respect to the time as of which items of gross income and deductions are to be accounted for. * * * . “§ 126. Income in respect of decedents “(a) Inclusion in gross income. “(1) General rule. The amount of all items of gross income in respect of a decedent which are not properly includible in respect of the taxable period in which falls the date of his death or a prior period shall be included in the gross income, for the taxable year when received, of: “(A) the estate of the decedent, if the right to receive the amount is acquired by the decedent’s estate from the decedent; “(B) the person who, by reason of the death of the decedent, acquires the right to receive the amount, if the right to receive the amount is not acquired by the decedent’s estate from the decedent * * *. “§ 181. Partnership not taxable “Individuals carrying on business in partnership shall be liable for income tax only in their individual capacity. “§ 1&2. Tax of partners “In computing the net income of each partner, he shall include, whether or not distribution is made to him— ****** “(c) IBs distributive share of the ordinary net income or the ordinary net loss of the partnership * * “§ 188. Different taxable" }, { "docid": "11125770", "title": "", "text": "case of the death of a taxpayer there shall be included in computing net income for the taxable period in which falls the date of his death, amounts accrued up to the date of his death if not otherwise properly includible in respect of such period or a prior period.” Estate of Putnam v. Commissioner, 324 U.S. 393, 396-397, 65 S.Ct. 811, 89 L.Ed. 1023. The Supreme Court held in Helvering v. Enright, supra, 312 U.S. 636, 61 S.Ct. 777, 85 L.Ed. 1093, that Section 42 of the Revenue Act of 1934 permitted the inclusion as accruable items, in a decedent’s gross income for the period ending with his death, his share of the profits earned, but not yet received, of a partnership, when both the decedent and the partnership reported income on a cash receipts and disbursements basis. Section 42 of the 1934 Revenue Act resulted in some hardships because there were bunched in the final income tax return of a decedent items of accrued income which might be collected later at different times over a period of years. This subjected such accrued income to higher tax rates than would be the case if returned in the different years in which they were later received. Accordingly, in the Revenue Act of 1942 Congress enacted Section 126 of the Internal Revenue Code, which is applicable to the present case, and under which the accrued interest on the notes was made taxable in the year received to the person who acquired from the decedent the right to receive it by bequest or inheritance. The question is, did the appellants receive this interest as taxable income or as a nontaxable inheritance of principal ? The Sixteenth Amendment did not define the word “income.” The Supreme Court in Eisner v. Macomber approved the following definition, “Income may be defined as the gain derived from capital, from labor, or from both combined,” provided it be understood to include profit gained through a sale or conversion of capital assets, pointing out the fundamental conception clearly set forth by the wording of the Amendment which gave" }, { "docid": "22228406", "title": "", "text": "the cash basis, import that it is the right to receive and not the actual receipt that determines the inclusion of the amount in gross income.” The completion of the work in progress was necessary to fix the amount due but the right to payment for work ordinarily arises on partial performance. Accrued income under § 42 for uncompleted operations includes the value of the services rendered by the decedent, capable of approximate valuation, whether based on the agreed compensation or on quantum meruit. The requirement of valuation comprehends the elements of collectibility. The items here meet these tests and are subject to accrual. The judgment of the Circuit Court of Appeals is reversed and the decision of the Board of Tax Appeals affirmed. Reversed. 112 F. 2d 919. 113 F. 2d 114. See Pfaff v. Commissioner, post, p. 646. 48 Stat. 680, c. 277: “Sec. 42. Period in which Items of Gross Income Included. The amount of all items of gross income shall be included in the gross income for the taxable year in which received by the taxpayer, unless, under methods of accounting permitted under section 41, any such amounts are to be properly accounted for as of a different period. In the case of the death of a taxpayer there shah be included in computing net income for the taxable period in which falls the date of his death, amounts accrued up to the date of his death if not otherwise properly includible in respect of such period or a prior period.” August 28, 1939, by memorandum opinion. Cf. Lillian O. Fehrman, Executrix, 38 B. T. A. 37. Cf. Revenue Act of 1932, 47 Stat. 169, c. 209, § 42. H. Rep. No. 704, 73rd Cong., 2nd Sess., p. 24; S. Rep. No. 558, 73rd Cong., 2nd Sess., p. 28. This situation followed the decision of the Court of Claims in Nichols v. United States, 64 Ct. Cls. 241. A decedent on the cash basis was a member of a partnership dissolved by his death. Commissions earned before death but unpaid to the partnership were valued in" }, { "docid": "13463704", "title": "", "text": "does not clearly reflect the income, the computation should be made in accordance with such method as in the opinion of the Commissioner does clearly reflect the income. Sec. 42 of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 42, provides that all items of gross income shall be included in the gross income for the taxable, year in which received by the taxpayer unless under some other lawful method of accounting such amounts are to be properly accounted for at a different period, and in case of the death of the taxpayer, the net income' accruing up to the date of his death shall be computed as his net income unless it is properly includable in some other tax period. Sec. 45 of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 45, authorizes the Commissioner to distribute, apportion, or allocate gross income or deductions between two or more organizations, trades, or businesses owned or controlled directly or indirectly by the same interests, if he determines that some distribution, apportionment, or allocation is necessary in order to prevent an evasion of taxes or clearly to reflect the income of such organizations, trades, or businesses. Apprppriate Treasury regulations relating to the use of the completed-contract ■method of accounting have been promulgated. The Sixteenth Amendment gave ■Congress the power to lay and collect taxes on incomes from whatever source derived, and we agree with the Tax Court that it is a fundamental concept of taxation that income is chargeable to him who earns it, in the absence of statutory exemption or provision to the contrary. It should be apparent that a corporation, by a transfer of all of its assets and liabilities, cannot absolve itself from liability for income taxes due to the United States, and that any right to an exemption from reporting income received by the taxpayer must be found in the federal law, rather than in the acts of the taxpayer. A corporation being a separate legal entity, its net earnings, whether ascertained or not, belong to it, and the tax upon unexempt income in each taxable year is" }, { "docid": "16166286", "title": "", "text": "Cornelia Prime, Executrix, 39 B. T. A. 487; Albert J. Alsberg, 42 B. T. A. 61; L. B. Hirsch, 42 B. T. A. 566. See also, Keith v. Commissioner, 139 Fed. (2d) 596. We can see no distinction in principle between those cases and the case now before us, in which the parties contemplated that as a prerequisite to, and a simultaneous component of, the loan transaction, interest on the face amount of the notes was to be calculated for the full life of the notes and deducted by the lender from the amount to be repaid pursuant to the terms of the notes, and only the excess was made available to the borrower. We are of the opinion that on the facts here present there was in effect a borrowing of principal and a borrowing of required interest, both represented by the notes executed by the petitioner, and, since he was on the cash basis, there can be no deduction by him on account of interest paid until he has paid the notes. Reviewed by the Court. Decision mil be entered for respondent. SEC. 43. PERIOD FOR WHICH DEDUCTION AND CREDITS TAKEN. The deductions and credits (other than the corporation dividends paid credit provided in section 27) provided for in this chapter shall be taken for the taxable year in which “paid or accrued” or “paid or incurred,” dependent upon the method of accounting upon the basis of which the net income is computed, unless in order to clearly reflect the income the deduction or credits should be taken as of a different period. In the case of the death of a taxpayer there shall be allowed as deductions and credits for the taxable period in which falls the date of his death, amounts accrued up to the date of his death (except deductions under section 23 (o)) if not otherwise properly allowable in respect of such period or a prior period." }, { "docid": "23418777", "title": "", "text": "A receiver was appointed in that year to operate the property and hold the net income. The United States, as the other party to the dispute, filed a bill in 1917 to establish its rights in the oil lands. Upon the district court’s dismissal of the bill in that year the 1916 profits were paid to taxpayer. Appeals followed and the litigation was finally terminated favorably to taxpayer in 1922. In holding that the 1916 income should have been reported in 1917, the court said at 286 U.S. at page 424, 52 S.Ct. at page 615, 76 L.Ed. 1197: “They [the 1916 profits] became income of the company in 1917, when it first became entitled to them and when it actually received them. If a taxpayer receives earnings under a claim of right and without restriction as to its disposition, he has received income which he is required to return, even though it may still be claimed that he is not entitled to retain the money, and even though he may still be adjudged liable to restore its equivalent.” Although the North American Oil case did not purport to hold that there must be a claim of right before there can be taxable income, the Wilcox case, citing North American Oil, did so state. In Wilcox the taxpayer had been a salaried bookkeeper for a Reno, Nevada, warehouse company. An audit of his books in 1942 disclosed that he had converted $12,748.60 of his employer’s money to his own use in 1941. Most of the money was lost in Reno gambling houses. Wilcox was convicted in Nevada of the crime of embezzlement and served a jail term. His employer never condoned or forgave the conversion and still held him liable therefor. Wilcox did not include the embezzled proceeds in his 1941 return. The Commissioner asserted a deficiency and was sustained by the Tax Court. In affirming a reversal by the Court of Appeals the Supreme Court held that Wilcox’ embezzlement did not constitute income under Section 22(a). While noting that it was immaterial whether the taxpayer’s motive in acquiring the" }, { "docid": "13463703", "title": "", "text": "completed-contract method of accounting which had been used by a corporation in previous years, such corporation was liable for taxes on income, earned during the year of its dissolution, from long-term contracts entered into by it but completed by its successor after the dissolution of the corporation; and whether the Commissioner used, and the Tax Court approved, an erroneous method of accounting, under Secs. 41, 42, and 45, Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code §§ 41, 42, 45, in allocating income for the year of dissolution between the Corporation and its successor, based upon the relative percentages that the cost paid by the Corporation during that part of the tax year prior to its dissolution and the cost paid by its successor after dissolution each bore to the profit from the completed contracts. Sec. 41 of the Internal Revenue Code, '26 U.S.C.A. Int.Rev.Code, § 41, provides that the net income should be computed in accordance with the method of accounting regularly employed in keeping the books of the taxpayer, but that if the method employed does not clearly reflect the income, the computation should be made in accordance with such method as in the opinion of the Commissioner does clearly reflect the income. Sec. 42 of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 42, provides that all items of gross income shall be included in the gross income for the taxable, year in which received by the taxpayer unless under some other lawful method of accounting such amounts are to be properly accounted for at a different period, and in case of the death of the taxpayer, the net income' accruing up to the date of his death shall be computed as his net income unless it is properly includable in some other tax period. Sec. 45 of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 45, authorizes the Commissioner to distribute, apportion, or allocate gross income or deductions between two or more organizations, trades, or businesses owned or controlled directly or indirectly by the same interests, if he determines that some distribution, apportionment, or allocation is necessary in" }, { "docid": "22228397", "title": "", "text": "years. The Commissioner assessed a deficiency because he included in the decedent’s return for 1934, under the claimed authority of § 42, supra note 3, the items of accounts and unfinished work. Respondents appealed to the Board of Tax Appeals. The Board decided that the evidence did not show the situation of the unfinished work in sufficient detail to enable the Board to determine independently that it was not accruable. The accounts receivable were held accruable. This left the Commissioner’s assessment intact. On appeal the Circuit Court of Appeals reversed the Board. It was of the opinion that the partnership was a tax computing unit separate from its members and that § 42 had the effect of placing the decedent “upon an accrual basis at the date of his death.” Consequently his return should be made as it would have been made if the deceased used the accrual method. The Court then reasoned that the requirement of § 182 of the Revenue Act of 1934, including a partner’s distributive share of the partnership earnings, whether distributed or not, in the partner’s computation of his own net income, put a partner on an accrual basis in accounting for partnership earnings, irrespective of § 42. Consequently § 42 was held not to affect the partnership accounting practices. It was further determined that it was the right to receive payment which made an earning accrue and that, as Mr. Enright under the partnership agreement had no right to receive anything from the firm except his proportionate share of the cash receipts, these cash receipts were all that “accrued” to him before his death. The last sentence of § 42 which requires the inclusion of “amounts accrued up to the date of his death” in computing net income for the period in which his death falls was added by the 1934 Revenue Act. The reports recommended its addition because the “courts have held that income accrued by a decedent on the cash basis prior to his death is not income to the estate, and under the present law, unless such income is taxable to" }, { "docid": "20071957", "title": "", "text": "the decedent’s estate of such right. Sec. 126(a)(2). Income in case of sale, etc. — If a right, described in paragraph (1), to receive an amount is transferred by the estate of the decedent or a person who receives such right by reason of the death of the decedent or by bequest, devise, or inheritance from the decedent, there shall be included in the gross income of the estate or such person, as the case may be, for the taxable period in which the transfer occurs, the fair market value of such right at the time of such transfer plus the amount by which any consideration for the transfer exceeds such fair market value. For the purposes of this paragraph, the term “transfer” includes sale, exchange, or other disposition, but does not include a transfer to a person pursuant to the right of such person to receive such amount by reason of the death of the decedent or by bequest, devise, or inheritance from the decedent. SEC. 42. PERIOD IN WHICH ITEMS OP GROSS INCOME INCLUDED. (a) General Rule. — The amount of all Items of gross Income shall be Included In the gross Income for the taxable year In which received by the taxpayer, unless, under methods of accounting permitted under section 41, any such amounts are to be properly accounted for as of a different period. In the case of the death of a taxpayer whose net Income is computed upon the basis of the accrual method of accounting, amounts (except amounts includible in computing a partner’s net income under section 182) accrued only by reason of the death of the taxpayer shall not be included in computing net Income for the period in which falls the date of the taxpayer’s death. Regs. 118, sec. 39.126(a)-l(f). If the right to receive an amount of Income in respect of a decedent is transferred by the estate or the person entitled to such amount by bequest, devise, or inheritance, or by reason of the death of the de.cedent, the fair market value of such right at the date of the" }, { "docid": "11125769", "title": "", "text": "120, 76 L.Ed. 248. The Government contends, however, that the tax is a tax on income and so not within the constitutional limitation. We first review the legislative history of Section 126. Prior to 1934 the courts held that income accrued by a decedent on the cash basis prior to his death was not taxable in the decedent’s final income tax return because it had not been received by him during his lifetime. Nor was it taxable as income to his estate because it came into the estate as capital, not as income. Nichols v. United States, 64 Ct.Cl. 241, certiorari denied, 277 U.S. 584, 48 S.Ct. 432, 72 L.Ed. 999; E. S. Heller, et al., Executors, 10 B.T.A. 53; William K. Vanderbilt, et al., Executors, 11 B.T.A. 291. See: Helvering v. Enright’s Estate, 312 U.S. 636, 639, Note 6, 61 S.Ct. 777, 85 L.Ed. 1093. In order to plug this loophole, it was provided by Section 42 of the Revenue Act of 1934, 48 Stat. 680, C. 277, 26 U.S.C.A. § 42, “In the case of the death of a taxpayer there shall be included in computing net income for the taxable period in which falls the date of his death, amounts accrued up to the date of his death if not otherwise properly includible in respect of such period or a prior period.” Estate of Putnam v. Commissioner, 324 U.S. 393, 396-397, 65 S.Ct. 811, 89 L.Ed. 1023. The Supreme Court held in Helvering v. Enright, supra, 312 U.S. 636, 61 S.Ct. 777, 85 L.Ed. 1093, that Section 42 of the Revenue Act of 1934 permitted the inclusion as accruable items, in a decedent’s gross income for the period ending with his death, his share of the profits earned, but not yet received, of a partnership, when both the decedent and the partnership reported income on a cash receipts and disbursements basis. Section 42 of the 1934 Revenue Act resulted in some hardships because there were bunched in the final income tax return of a decedent items of accrued income which might be collected later at different times" }, { "docid": "6883438", "title": "", "text": "income until 1922 when the right to retain it became final with the completion of all appellate processes. The Supreme Court dismissed the assertion that the income was taxable to the company in 1916 since it “was not required in 1916 to report as income an amount which it might never receive” (286 U.S. at page 423, 52 S.Ct. at page 615). As between the remaining years, 1917 and 1922, the Court held the income taxable in 1917. “If a taxpayer receives earnings under a claim of right and without restriction as to its disposition, he has received income which he is required to return, even though it may still be claimed that he is not entitled to retain the money, and even though he may still be adjudged liable to restore its equivalent” (286 U.S. at page 424, 52 S.Ct. at page 615). [Emphasis added.] It is plain that this case does not concern the question of the propriety of the deferral of unearned receipts. The petitioner asserted only that the existence of a contingency affecting its right either to receive or retain a fund which was concededly earned income should affect the year of inclusion of the income for tax purposes. The Court held only that money that was earned and held under a claim of right was includible in the year of receipt. The question presented here is very different. The petitioner asserts here that it has received a fund which it will not have earned until a subsequent tax period, and claims the right to defer its inclusion until it is earned so that it can be matched with the expenses incident to the production of the revenue in accordance with a scientific and regularly established accounting procedure. The real issue raised by the facts but not argued in the North American case from an accounting standpoint was whether a corresponding reserve to meet the contingency of the need for repayment could, if it were a sound ac> counting technique, constitute a deduction in 1917, the year of inclusion of the income. This issue was not" }, { "docid": "3907368", "title": "", "text": "Hopkins v. Bacon, 282 U.S. 122, 51 S.Ct. 62, 75 L.Ed. 249; Stewart v. Com’r, 5 Cir., 95 F.2d 821; Johnson v. Com’r, 8 Cir., 88 F.2d 952. Fairless v. Com’r, 6 Cir., 67 F.2d 475; American Cigar Co. v. Com’r, 2 Cir., 66 F.2d 425, certiorari denied 290 U.S. 699, 54 S.Ct. 209, 78 L.Ed. 601; Continental Pipe Mfg. Co. v. Poe, 9 Cir., 59 F.2d 694; Cross v. Com’r, 9 Cir., 54 F.2d 781. “Sec. [§] 42. Period in which items of gross income included “ * * * In the case of the death of a taxpayer there shall be included in computing net income for the taxable period in which falls the date of his death, amounts accrued up to the date of his death if not otherwise properly includible in respect of such period or a prior period.” 26 U.S.C.A. § 42. “Sec. [§] 43. Period for which deductions and credits taken “ * * * In the case of the death of a taxpayer there shall be allowed as deductions and credits for the taxable period in which falls the date of his death, amounts accrued up to the date of his death if not otherwise properly allowable in respect of such period or a prior period.” 26'U.S.O.A. §43. H. Report, 704, 73rd Cong., 2nd Session, Ways and Means Committee, pg. 24: “Sections 42 and 43. Income accrued and accrued deductions of decedents: The courts have held that income accrued by a decedent on the cash basis prior to his death is not income to the estate, and under the present law, unless such income is taxable to the decedent, it escapes income tax altogether. By the same reasoning, expenses accrued prior to death cannot be deducted by the estate. Section 42 has been drawn to require the inclusion in the income of a decedent of all amounts accrued up to the date of his death regardless of the fact that he may have kept his books on a cash basis. Section 43 has also been changed so that expenses accrued prior to the" }, { "docid": "23327536", "title": "", "text": "to December 1, 1943. The Henderson’s Estate and Girard Trust Company cases, supra, clearly support the conclusion reached by the Tax Court. The decision of the Tax Court is affirmed. . “§ 41. General rule “The net income shall be computed upon the basis of the taxpayer’s annual accounting period (fiscal year or calendar year, as the case may be) in accordance with the method of accounting regularly employed in keeping the books of such taxpayer; but if no such method of accounting has been so employed, or if the method employed does not clearly reflect the income, the computation shall be made in accordance with such method as in the opinion of the Commissioner does clearly reflect the income. * * * “§ 42. Period in which items of gross income included “(a) General rule. The amount of all items of gross income shall be included in the gross income for the taxable year in which received by the taxpayer, unless, under methods of accounting permitted under section 41, any such amounts are to be properly accounted for as of a different period. In the case of the death of a taxpayer whose net income is computed upon the basis of the accrual method of accounting, amounts (except amounts includible in computing a partner’s net income under section 182) accrued only by reason of the death of the taxpayer shall not be included in computing net income for the period in which falls the date of the taxpayer’s death.” . Sec. 29.41-1. Computation of net income. Net income must be computed with respect to a fixed period. Usually that period is 12 months and is known as the taxable year. * * * If the method of accounting regularly employed by him in keeping his books clearly reflects his income, it is to be followed with respect to the time as of which items of gross income and deductions are to be accounted for. * * * . “§ 126. Income in respect of decedents “(a) Inclusion in gross income. “(1) General rule. The amount of all items of" }, { "docid": "2911164", "title": "", "text": "which received by the taxpayer, unless, under methods of accounting permitted under section 41, any such amounts are to be properly accounted for as of a different period.” (Emphasis supplied.) Regulations issued by the Commissioner reiterate the principle that the accounting methods and computations thereunder are to be made in a manner which will clearly reflect the taxpayer’s income. As permitted by § 41, the practice of accrual accounting has long been recognized for the purpose of tax accounting. See United States v. Anderson, 269 U.S. 422, 46 S.Ct. 131, 70 L.Ed. 347, and § 446 (c) Internal Revenue Code of 1954, 26 U.S.C.A. § 446(c). Generally, under such a system, it is contemplated that income, earned but not yet received, is to be reported, with the corresponding accrual of expenses incurred but not yet paid. It is not surprising that considerable litigation has arisen as to the proper treatment to be given specific items in specific instances. One line of cases has dealt with the problem of when income accrues, and in this connection, the so-called “claim of right” doctrine first made its appearance, apparently in North American Oil Consolidated v. Burnet, 286 U.S. 417, 52 S. Ct. 613, 76 L.Ed. 1197. In that case, it was conceded that net profits earned by property in receivership during 1916 and paid over in 1917 constituted income. After holding that the income could not be said to have accrued during 1916, inasmuch as there was no constructive receipt of monies, nor right in taxpayer to demand the profits, the court further held that the profits were income for 1917, and not income for the year 1922, the year in which litigation was finally terminated, stating at page 424 of 286 U.S., at page 615 of 52 S.Ct.: “If a taxpayer receives earnings under a claim of right and without restriction as to its disposition, he has received income which he is required to return, even though it may still be claimed that he is not entitled to retain the money, and even though he may still be adjudged liable to restore" }, { "docid": "22228407", "title": "", "text": "which received by the taxpayer, unless, under methods of accounting permitted under section 41, any such amounts are to be properly accounted for as of a different period. In the case of the death of a taxpayer there shah be included in computing net income for the taxable period in which falls the date of his death, amounts accrued up to the date of his death if not otherwise properly includible in respect of such period or a prior period.” August 28, 1939, by memorandum opinion. Cf. Lillian O. Fehrman, Executrix, 38 B. T. A. 37. Cf. Revenue Act of 1932, 47 Stat. 169, c. 209, § 42. H. Rep. No. 704, 73rd Cong., 2nd Sess., p. 24; S. Rep. No. 558, 73rd Cong., 2nd Sess., p. 28. This situation followed the decision of the Court of Claims in Nichols v. United States, 64 Ct. Cls. 241. A decedent on the cash basis was a member of a partnership dissolved by his death. Commissions earned before death but unpaid to the partnership were valued in the estate tax and collected by the partnership after death for payment to the executors. The Court of Claims held sums paid the executors were part of the corpus and not income. The Board of Tax Appeals followed the reasoning of the Court of Claims. William G. Frank, Adm., 6 B. T. A. 1071; E. S. Heller, Exec., 10 B. T. A. 53; George Nichols, Exec., 10 B. T. A. 919; Estate of A. Plumer Austin, 10 B. T. A. 1055; William K. Vanderbilt, Exec., 11 B. T. A. 291; J. Howland Auchincloss, Exec., 11 B. T. A. 947; William P. Blodget, Exec., 13 B. T. A. 1243; Jackson B. Kemper, Adm., 14 B. T. A. 931; Maurice L. Goldman, 15 B. T. A. 1341. H. Rep. supra. “Sec. 182. Tax of Partners. There shall be included in computing the net income of each partner his distributive share, whether distributed or not, of the net . income of the partnership for the taxable year.” We do not consider or decide whether this accounting for a" }, { "docid": "3907349", "title": "", "text": "taxpayer upon a cash receipts and disbursement basis, and placed him upon an accrual basis for the taxable period involved; and, that the books of account actually kept by him are not to be considered. In considering the contention of petitioners we must consider the legislative history of secs. 42 and 43. From its very terms, and as is clearly expressed in the reports of the congressional committees handling the legislation, it is evident that sec. 42 found its way into the tax law for the purpose of pre venting ordinary income from escaping taxation. Previously, whenever a taxpayer on a cash receipts and disbursement basis died, income accrued up to his death passed to the estate as a part of the corpus, escaping the income tax mill altogether. Sec. 42, enacted to cover the situation, “includes” in taxable income “for the taxable period in which falls the date of his [taxpayer’s] death, amounts accrued up to the date of his death”. Thus the taxable income for such period is the income of the taxpayer actually received, plus the income accrued but not received. The objective of Congress, which must always be kept in mind, is that the net income of the taxpayer, prior to his death, bear the burden of income taxes, regardless of his tax basis, or whether he kept books, and that the income accrued should be added to the income actually received. On the other hand it is evident that in subjecting such additional income to taxation, Congress intended to permit additional deductions to such taxpayers. Sec. 43 makes allowable “deductions * * * for the taxable period in which falls the date of his [taxpayer’s] death, amounts accrued up to the date of his death * * This could only mean such deductions that were not allowable to a taxpayer on a cash basis prior to the enactment of sec. 43. The purpose of Congress was to see reflected in the return of such decedent credits and deductions which had accrued, whether reflected on the books of the taxpayer or not. It required sec. 43" }, { "docid": "23327530", "title": "", "text": "his operation of the business as sole proprietor had correctly kept his books on the accrual basis, and that the hooks as kept correctly reflected his taxable income, but that he had erroneously reported income on a hybrid basis in showing in his returns receipts from credit sales on the cash receipts basis while accruing such receipts as income in his books. The Commissioner determined that the business income should have been reported on the accrual basis as reflected by the books of the business, and that credit sales of $103,456.73, evidenced by accounts receivable as of January 1, 1942, none of which had previously been reported as taxable income, should be added to the net business profit computed for the period of January 1 to June 23, 1942. The Commissioner also determined that the net profit of the partnership for the fiscal year ended May 31, 1943, was reflected in the books of the partnership on the accrual basis, and was incorrectly reported in the hybrid system shown by the partnership return. He also determined that the death of Samuel Mnookin terminated the partnership, so that respondent was required to accrue and include in the income tax return for Samuel Mnookin for the period January 1- to December 1,; 1943, the sum of $6,436.34, which the Commissioner determined to be Mnookin’s allocable share of the partnership profit from June 1 to December 1, 1943. The result of these determinations was the assessment of the deficiency in the amount stated above. 1. Following its decision in Greene Motor Company, 5 T.C. 314, the Tax Court ruled that the Commissioner erroneously included in Samuel Mnookin’s income for 1942, $103,456.73 representing credit sales which accrued and were shown on Mnookin’s books in prior years. Sections 41 and 42 ******of the Internal Revenue Code, 26 U. S.C.A. §§ 41, 42, and the Treasury Regulation pursuant thereto (§ 29.41-1, Regulations 111) require that a taxpayer’s net income must be computed on the basis of his annual accounting period which, in the case of decedent, was the calendar year; that if the method of accounting" } ]

[ { "docid": "14683957", "title": "", "text": "fail to prove a violation of the Gambling Devices Act?” The questions for review will be considered in a sequence different from the above in order to give better coherence to our treatment of them. The trial judge, in his Findings of Fact and Conclusions of Law, has set forth a description of the pinball machines involved in this litigation and our analysis of the record establishes that his description conforms to the testimony and we adopt it. It is as follows: “2. That the respondents are coin activated electrically operated machines. The machines when assembled and ready for use consist of a vertical section attached to a base section to which are secured four legs. The base section contains a plunger device, a number of holes drilled into an inclined playboard and a quantity of posts with rubber bumpers placed at intervals thereon. The devices are each equipped with eight metal balls, five of which are released for play upon insertion of a coin. The vertical section has a glass front upon which the results of play are recorded by electrically operated equipment. The object of play of the devices is to propel the balls by means of the plunger onto the inclined playboard so that the ball will fall into certain holes and thereby light corresponding light bulbs located on the vertical section of the machines. When three or more bulbs are lit in a row, or in some other predetermined order, the machine registers so-called ‘free plays.’ The machines are so constructed that any number of coins may be inserted therein before actual play of the game begins. The number of ‘free plays’ to be awarded for successful operation of the device can be increased by insertion of additional coins prior to play of the machine, although the rate of increase of free play awards cannot be controlled by the player and may or may not increase upon the insertion of a particular coin. The machine also provides other ‘features,’ the most prominent of which is denominated ‘skill-shot’ which will award a designated number of ‘free plays’" } ]

[ { "docid": "20788950", "title": "", "text": "under Sub-sections A, B and O of this Section, and which do not return to the operator or player thereof anything but free additional games or plays or which through the exercise of the skill of the operator or player, returns to the operator or player a merchandise prize, shall not be deemed to be or classed as gambling devices, and neither this Section nor any other Act shall be construed to prohibit same. . La.R.S. 15:31 (1967) provides in full: § 31. Confiscation and destruction of gambling devices; exceptions A. All officers of the State of Louisiana are hereby authorized and empowered and it is made mandatory and compulsory on their part to confiscate and immediately destroy all gambling devices or machines used for gambling that may come to their attention and that they may find in operation. The ownership of a federal gambling stamp for the machine or device shall be absolute proof of its use for purposes of gambling, except as set forth in Subsection B of this Section, and neither the State of Louisiana nor any subdivision, agency, agent, or enforcement officer shall be liable civilly or criminally for the destruction of any gambling device or gambling machine for which a federal gambling stamp has been issued. B. This Section shall not apply to any games, machines, or other devices, where there is no cash automatic payout and where there is an element of skill involved in the playing, including specifically coin-operated bowling games, shuffle alleys, pinball games, mechanical baseball games, electronic ray guns, mechanical guns, digger type machines, iron claws, and all similar types of coin-operated amusement games, as licensed under Subsections A, B, C, and E of R.S. 47 :375. . Indeed, La.R.S. 47:375(F), and not (E), is more appropriately applied to the machines alleged to exist in this case. La. R.S. 47:375(F) provides in full: Every person engaged in the business of operating, or who permits to be operated in his place of business, any so called “slot” machine or similar machine or device which is operated by means of inserting or depositing" }, { "docid": "7790620", "title": "", "text": "in order to increase the reward for successful play, the facility with which free plays can be eliminated from the free play register and the ease by which free plays so eliminated can be counted renders these devices peculiarly and uniquely suited for gambling purposes. 4. Successful play of these devices cannot be achieved by the application of skill and depends upon the result of the application of an element of chance. 5. The successful player of these devices will win not only a right to replay the devices but also the opportunity to have free games redeemed for cash or merchandise. 241 F.Supp. at 59. The court then concluded: The respondent machines are gambling devices as defined in 15 U.S.C. § 1171 in that they are designed and manufactured primarily for use in connection with gambling and by the operation of which a person may become entitled to receive as a result of an application of an element of chance money or property. 241 F.Supp. at 59. The court added that the respondent machines “are not exempted from the application of Chapter 24 of Title 15, U.S.C. by virtue of any exception contained in 15 U.S.C. § 1178 or any other section of Chapter 24.” 241 F.Supp. at 59. In the present case, there can be no doubt that the defendant draw poker-type machines are designed and manufactured primarily for use in connection with gambling and by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, money or property. The previously described features of these machines, which are not in dispute, demonstrate that these machines are gambling devices within the meaning of 15 U.S.C. § 1171(a)(2). Accord United States v. Various Slot Machines on Guam, supra; United States v. Various Gambling Devices, supra, 368 F.Supp. at 663; United States v. Two Coin-Operated Pinball Machines, supra; H.R.Rep. No. 1828, 87th Cong., 2d Sess., reprinted in [1962] U.S.Code Cong. & Ad. News 3809, 3811. Furthermore, these same features also refute any claim that the machines are exempt from" }, { "docid": "6982256", "title": "", "text": "only three free plays per game and will accumulate no more than ten to fifteen at a time. On the other hand, the machines before the Court can return up to 100 free games for each game played and will accumulate 295 at one time. This feature is more compatible with gambling than with amusement. Moreover, amusement devices, unlike the machines involved here, contain no knock-off mechanism and each game won must be played off separately to return the machine to zero. In the recent case of Szybski v. United States, 220 F.Supp. 806 (E.D.Wisc. 1963), the Court in considering this feature stated: “In addition, the number of free games obtainable was so great that to assume that they were the sole reward for proficiency on the machines would have been unrealistic. It was far more reasonable to assume that free games won but not played were redeemable in cash, since players leaving the machines without having played all the free games they had won would be abandoning something of value.” This is the assumption and conclusion we make here. This feature, in conjunction with the fact that these machines had knock-off circuits operable at the time of the confiscation; that they had buttons that could be used to release free plays, and the fact that both contained two bolts similarly placed and spaced which would “knock-off” the machine if proper contact was made, leads, inescapably to the conclusion that they were designed and constructed in such a way that they might entitle the person playing them to receive some cash, premiums, merchandise or tokens. The machine itself is designed to conduct or control a gambling transaction with its patrons. The Government’s expert, Mr. Neyens, was questioned about the coin divider in the machine and testified that in his opinion the purpose of the coin divider was “to divide the money in such a ratio so the storekeeper can pay off to the player the amount of money the player has coming.” He stated that a coin divider is a substitute for a meter to record the number of games" }, { "docid": "5457465", "title": "", "text": "the Fort Smith Fair held at Fort Smith, Arkansas. The owners’ basic argument on appeal is the evidence fails to show that the machines in question were coin-operated gaming devices within the meaning of 26 U.S.C. § 4462. They urge the machines are games of skill, and the element of chance, if any, is insufficient to render the machines gaming devices under the statute. The machines involved in these forfeiture proceedings are referred to as the Poker Reno, Mighty Payloader, Crompton Penny Falls, and the Sweepstakes. Poker Reno Machines. The Poker Reno type machines were described and found to be gaming devices in United States v. 20 “Dealer’s Choice” Machines & Coin Contents of $3.50, 341 F.Supp. 1147 (D.S.C.1972), rev’d on other grounds, 483 F.2d 474 (4th Cir. 1973). Similar machines have been found judicially and administratively to be gaming devices within the meaning of section 4462. United States v. One Bally “Barrel-O-Fun” Coin-Operated Gaming Device, 224 F.Supp. 794 (M.D.Pa.1963), aff’d sub nom. Brozzetti v. Rogers, 337 F.2d 857 (3rd Cir. 1964); Rev. Rul. 72-566, 1972-2 C.B. 583; Rev.Rul. 56-309, 1956-2 C.B. 893. The fact that the Poker Reno machines, unlike the machines in the cases cited, did not have an electrical control which, in the owners’ words, “deprived the player of the opportunity to exercise his skill in playing the machine,” is not decisive, since the amount of time involved in playing the machine does not alter the substantial element of chance involved. The evidence shows that the “skill” involved in playing was only a small factor and that the element of chance was a substantial factor in winning. The fact that there may be some skill involved in the game is not determinative. United States v. Korpan, 354 U.S. 271, 77 S.Ct. 1099, 1 L.Ed.2d 1337 (1957). When there is a substantial element of chance involved, the fact that skill in operating the machine is helpful in attaining the end sought does not take the machine out of the type defined by the statute. See United States v. 24 Digger Merchandising Machines, 202 F.2d 647, 649-50 (8th Cir.)," }, { "docid": "14708289", "title": "", "text": "are gaming devices. The machines involved in all of those cases were substantially different from those involved in the cases at bar in the following significant respects: 1. In United States v. Korpan, supra, the defendant’s machines (a) awarded free games, (b) contained a provision for multiple coin insertion to increase the odds, (c) registered free games won but not played off on a replay meter inside the machine. (See United States v. Kor-pan (C.A.7, 1956, 237 F.2d 676) 2. In Harvey v. United States (D.Or., 1962) 214 F.Supp. 80, both machines held to be gaming devices awarded up to 999 free games. One contained a provision for multiple coin insertion to increase the odds. 3. In Turner v. United States (D. Kans., 1962) 62-1 U.S.T.C. 15,402, the plaintiff’s machine (a) awarded up to 999 free games, (b) contained a provision for multiple coin insertion to increase the odds, (c) registered free games won but not played off on a meter. 4. In United States v. Nine Gambling Devices, supra, all machines (a) awarded up to 1000 free games, (b) contained a provision for multiple coin insertion to increase the odds, (c) registered free games won but not played off on a meter. In awarding free games, each of the machines involved in the above cited cases, unlike the machines in these cases, contained a built-in payoff awarding successful players the equivalent of cash. In addition, the number of free games obtainable was so great that to assume that they were the sole reward for proficiency on the machines would have been unrealistic. It was far more reasonable to assume that free games won but not played were redeemable in cash, since players leaving the machines without having played all the free games they had won would be abandoning something of value. Particularly is this true where the machines kept a record of free games won but not played, which record could only be useful “as an accounting device which permits the collection man to determine the number of games paid for by the proprietor for the purpose of reimbursing" }, { "docid": "14708288", "title": "", "text": "award. It is our belief that the word “may” was used to express and emphasize the fact that an element of chance must be involved, that is, to indicate that because of the gaming features inherent in the machine, an award will not always be forthcoming. Nothing in the authorities cited to us or in the legislative history or administrative interpretations which we have examined indicates that because of the use of the word “may” § 4462(a) (2) (A) includes within its scope machines lacking the characteristics of gaming devices the use of which may be perverted to gambling. If the section were interpreted that broadly, and since under § 4462(a) (2) (B) machines need not be coin-operated to be considered gaming devices, such devices as ordinary cigarette lighters, which may or may not light on the first try, or which may or may not light three times in a row, would be subject to a $250.00 tax. The defendant has cited four cases only in support of its position that the plaintiffs’ pinball machines are gaming devices. The machines involved in all of those cases were substantially different from those involved in the cases at bar in the following significant respects: 1. In United States v. Korpan, supra, the defendant’s machines (a) awarded free games, (b) contained a provision for multiple coin insertion to increase the odds, (c) registered free games won but not played off on a replay meter inside the machine. (See United States v. Kor-pan (C.A.7, 1956, 237 F.2d 676) 2. In Harvey v. United States (D.Or., 1962) 214 F.Supp. 80, both machines held to be gaming devices awarded up to 999 free games. One contained a provision for multiple coin insertion to increase the odds. 3. In Turner v. United States (D. Kans., 1962) 62-1 U.S.T.C. 15,402, the plaintiff’s machine (a) awarded up to 999 free games, (b) contained a provision for multiple coin insertion to increase the odds, (c) registered free games won but not played off on a meter. 4. In United States v. Nine Gambling Devices, supra, all machines (a) awarded up" }, { "docid": "14708291", "title": "", "text": "him.” (United States v. Korpan (C.A.7, 1956) 237 F.2d 676 at 679). So, too, the provision for multiple coin insertion to increase the odds, contained in most of the machines involved in the above cases and not contained in the plaintiffs’ machines, would be pointless in a machine not devoted to gambling. The defendant has attempted to equate the score attained on the plaintiffs’ machines in these cases with free game awards made by machines in the cases cited. In our opinion such an equation is faulty. When a player ceases play on one of the plaintiffs’ machines leaving a score on the meter, he is not abandoning the equivalent of the cost of a number of games. Neither do we consider it significant that the score obtained on one of the plaintiffs’ machines can be carried over and accumulated or used by a player to increase odds in a subsequent game. Each subsequent game must be purchased on the plaintiffs’ machines unlike the free game machines. The use of a portion of the score to increase odds in a later game does not constitute an expenditure of anything of value. We conclude that nothing in the features, characteristics and functioning of the plaintiffs’ machines renders them gaming devices per se since nothing m their inherent design indicates or compels the conclusion that any award may be made to successful players. The machines are therefore amusement devices within the meaning of § 4462(a) (1) (C) and the tax imposed is the $10.00 tax specified in § 4461(a) (1). Counsel for the plaintiffs will prepare findings of fact and conclusions of law in accordance with this opinion and submit them to opposing counsel for approval as to form. . The 1958 amendment to § 4462 need not be considered here, since all the machines involved are coin-operated. . See Annotation, 89 A.L.R.2d 815 Ooinoperated pinball machine or similar device, played for amusement only or confining reward to privilege of free replays, as prohibited or permitted by amtigambUng laws” at Page 823, where the following conclusion is set forth: “ * Ü-." }, { "docid": "4964321", "title": "", "text": "FINDINGS OF FACT AND CONCLUSIONS OF LAW SAMUEL P. KING, District Judge. This is an action to forfeit sixteen (16) electronic gambling devices. This Court, having rendered on September 24, 1984 a decision in favor of the plaintiff, hereby adopts its Findings of Fact and Conclusions of Law as follows: FINDINGS OF FACT 1. On August 5,1983, Special Agents of the Federal Bureau of Investigation and Police Officers of the Honolulu Police Department seized the sixteen (16) defendant electronic gambling devices from Keeaumoku Amusement, Honolulu, Hawaii. 2. None of the gambling devices were manufactured in the State of Hawaii. 3. Each device contains mini-computer components which generate electrical impulses to create images on a screen. 4. To initiate play on a machine a player inserts one or more coins, the player then activates the device by activating one or more buttons. 5. Some of the machines have additional features which require the player to perform additional functions. 6. The outcome of play produces a combination of images or symbols which do not occur in a predetermined sequence, but strictly at random. 7. Each machine has a meter or provision for a meter to cumulatively record the number of coins inserted into the device and additional meters to record credits awarded, games played and unused credits or a method to calculate unused credits removed. 8. Each machine pays off in additional credits for each winning combination displayed on the face of the device. 9. By betting additional credits or inserting additional coins a player can increase the payoff ratio for each winning combination displayed on the face of the device. 10. Each machine is designed and manufactured to retain a predetermined percentage of all coins inserted into the device. This retention ratio is commonly referred to as the “house percentage” and applies only to games of chance. 11. Each device can be set to retain greater percentages if the owner or operator so desires. 12. Several of the electronic video gambling devices attempt to duplicate some of the more popular casino-type games such as “Draw Poker,” “Five Card Stud”, “Black Jack,”" }, { "docid": "6982255", "title": "", "text": "L.Ed. 397 (1931). Revenue Rulings indicate and are evidence of the administrative construction of the statute. It is well established that the administrative construction of a statute by the agency charged with the duty of enforcing or applying it is entitled to great weight. Federal Trade Commission v. Mandel Brothers, 359 U.S. 385, 79 S.Ct. 818, 3 L.Ed.2d 893 (1959) ; West Texas Utilities Company v. National Labor Relations Board, 87 U.S.App.D.C. 179, 184 F.2d 233 (8th Cir. 1950); Circle Discount Corporation v. United States, 211 F.Supp. 743 (D.D.C. 1962). These machines are such that their physical makeup brings them easily within the statutory definition of a gaming device and its constructions and interpretations not only under the Regulations, but also by Treasury Rulings and case law. A realistic look at the question would also lead to the same conclusion. At the hearing the Government called as its principal witness a Mr. Wayne Neyens, who qualified as an expert in the field of coin-operated amusement and gambling devices. He testified that normal amusement devices return only three free plays per game and will accumulate no more than ten to fifteen at a time. On the other hand, the machines before the Court can return up to 100 free games for each game played and will accumulate 295 at one time. This feature is more compatible with gambling than with amusement. Moreover, amusement devices, unlike the machines involved here, contain no knock-off mechanism and each game won must be played off separately to return the machine to zero. In the recent case of Szybski v. United States, 220 F.Supp. 806 (E.D.Wisc. 1963), the Court in considering this feature stated: “In addition, the number of free games obtainable was so great that to assume that they were the sole reward for proficiency on the machines would have been unrealistic. It was far more reasonable to assume that free games won but not played were redeemable in cash, since players leaving the machines without having played all the free games they had won would be abandoning something of value.” This is the assumption" }, { "docid": "4964326", "title": "", "text": "connection with gambling” and “by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, money or property,” can be determined by examining its characteristics or features. Among the characteristics or features to be found in gambling devices are a meter recording the number of credits earned by a player and a knockoff button to erase credits when he is paid off (United States v. 5 Gambling Devices, 346 F.Supp. 999, 1001 (W.D.La.1972); United States v. Various Gambling Devices, 368 F.Supp. 661, 663 (N.D.Miss.1973); United States v. 18 Gambling Devices, 347 F.Supp. 653, 656 (S.D. Miss.1972)), the provision for multiple coin insertion in order to increase the reward for successful play (United States v. Two Coin-Operated Pinball Machines, 241 F.Supp. 57, 59 (W.D.Ky.1965)), the great number of credits which can be achieved by players (Id.), and a meter which recorded only those credits which were knocked off. (United States v. 18 Gambling Devices, supra at 661; United States v. Two Coin-Operated Pinball Machines, supra at 59). 4. The characteristics and features rendering these machines “peculiarly and uniquely suited for gambling purpose” (United States v. Two Coin-Operated Pin Ball Machines, supra at 59) are built into each of the machines. They all have knock off switches to erase credits from the machines. They all have meters either in the circuitry or in the form of an electro-mechanical device which counts the number of credits erased from the machine. Most have multiple coin features by which the player can bet more than one coin or credit, thereby increasing the potential payoff. They all have credit meters with the capability of recording an excessive number of credits. The length of time required for completion of each play is very short in duration, in most instances, just a matter of five to ten seconds. A player cannot, regardless of alleged skill levels or capabilities, extend the length of play. All defendants have the capability of being programmed to retain a predetermined percentage of all coins inserted. The outcome of play occurs strictly" }, { "docid": "19225941", "title": "", "text": "cases have held that pinball machines with features identical or similar to those in this case are coin operated gaming devices within the meaning of Section 4462(a) (2). See United States v. One Bally “Barrel-O-Fun ” Coin-Operated Gaming Device, 224 F.Supp. 794 (M.D.Pa.1963); Turner v. United States, 9 AFTR 2d 2031 (D.C. Kan.1962); United States v. Nine Gambling Devices, 4 AFTR 2d 6187 (S.D. Ill.1957). It is not necessary that there be evidence of actual payoffs in the use of the machines. It is sufficient to show that the machines possess the features that may deliver or entitle the person playing the machine to receive cash, premiums, merchandise or tokens. United States v. One Bally “Barrel-O-Fun” Coin-Operated Gaming Device, supra; Turner v. United States, supra; United States v. Nine Gambling Devices, supra. Since the $250 tax on coin operated gaming devices is applicable to the machines in this case, and since this tax has not been paid, the machines are subject to forfeiture under 26 U.S.C.A. § 7302. United States v. One Bally “Barrel-O-Fun” Coin-Operated Gaming Device, supra; United States v. Nine Gambling Devices, supra; United States v. Five Coin-Operated Gaming Devices and Contents, 154 F.Supp. 731 (D.C. Md.1957). Intervenor-mortgagee contends that it is an innocent mortgage holder and as such is entitled to the return of the machines free of any claim of the United States. A forfeiture proceeding, however, is a proceeding in rem against the property, and neither the innocence of the owner or of the chattel mortgagee is a defense to the forfeiture. United States v. Bride, 308 F.2d 470 (9 Cir.1962). Nor are the owner and mortgagee here entitled to a remission of forfeiture in this Court. In cases for violation of the internal revenue laws the district court is without jurisdiction to remit or mitigate the forfeiture except under the provisions of 18 U.S.C.A. § 3617. United States v. Bride, supra. That section applies only to property seized for violation of the internal revenue laws relating to liquor and has no application to the seizure of these pinball machines. A claim for remission or" }, { "docid": "19225940", "title": "", "text": "the player from physically affecting the course of the ball down the playing field. The machines also have a push button or “knock-off” device for releasing free games won which have not been played off. These free games released and not played off are recorded on a meter which is capable of recording up to 999 free games. We think these machines are coin operated gaming devices within the intention of Section 4462(a) (2). Treasury Department Regulations include in a list of machines or devices encompassed by this section a “pinball machine equipped with a push button for releasing free plays and a meter for recording the plays so released, or equipped with provisions for multiple coin insertion for increasing the odds.” 26 CFR § 45.4462-1 (b) (2) (iii). In United States v. Korpan, 354 U.S. 271, 77 S.Ct. 1099, 1 L.Ed.2d 1337 (1957), it was established that pinball machines can be considered gaming devices within the definition of Section 4462(a) (2). In that case the pinball machines were similar to those seized here. Other cases have held that pinball machines with features identical or similar to those in this case are coin operated gaming devices within the meaning of Section 4462(a) (2). See United States v. One Bally “Barrel-O-Fun ” Coin-Operated Gaming Device, 224 F.Supp. 794 (M.D.Pa.1963); Turner v. United States, 9 AFTR 2d 2031 (D.C. Kan.1962); United States v. Nine Gambling Devices, 4 AFTR 2d 6187 (S.D. Ill.1957). It is not necessary that there be evidence of actual payoffs in the use of the machines. It is sufficient to show that the machines possess the features that may deliver or entitle the person playing the machine to receive cash, premiums, merchandise or tokens. United States v. One Bally “Barrel-O-Fun” Coin-Operated Gaming Device, supra; Turner v. United States, supra; United States v. Nine Gambling Devices, supra. Since the $250 tax on coin operated gaming devices is applicable to the machines in this case, and since this tax has not been paid, the machines are subject to forfeiture under 26 U.S.C.A. § 7302. United States v. One Bally “Barrel-O-Fun” Coin-Operated" }, { "docid": "7790618", "title": "", "text": "establishment where the gambling machine is located or by his agent. The committee bill broadens the definition of the term “gambling device” in the Johnson Act so as to include such pinball machines and any other mechanical devices which are designed and manufactured primarily for use in connection with gambling and which when operated may deliver as a result of the application of an element of chance any money or property, either directly or indirectly. Pinball and other machines, intended for amusement only, which award a limited number of free plays that are not convertible to money or other things of value, are not covered by this legislation. H.R.Rep. No. 1828, 87th Cong., 2d Sess., reprinted in [1962] U.S.Code Cong. & Ad. News 3809, 3811. From this recitation of legislative history, it is clear that the defendant draw poker-type machines, although technically more advanced, differ little in purpose and design from the machines that Congress sought to prohibit through the Gambling Devices Act of 1962. Indeed, these new machines have many of the same features described in the House Report over twenty years ago. These features include: (1) the option of paying from one to eight quarters for a single play, (2) the potential for winning an inordinate number of free games (e.g., up to 400 on a single play), (3) the ability to “knock off” or eliminate accumulated free games from a machine, and (4) devices for measuring the number of free games eliminated from the machine. See Affidavit of William L. Holmes (Dec. 27, 1983). In United States v. Two Coin-Operated Pinball Machine, 241 F.Supp. 57 (W.D.Ky. 1965), aff'd sub nom. United States v. M. Branson Distributing Co., 398 F.2d 929 (6th Cir.1968), the district court concluded that two machines with features similar to those in the present case were gambling devices within the meaning of 15 U.S.C. § 1171(a) and subject to forfeiture under 15 U.S.C. § 1177. The district court made the following pertinent findings of fact: 3. The great number of free games which can be achieved by players, the provision for multiple coin insertion" }, { "docid": "20818363", "title": "", "text": "not registered either the pinball machines or the slot machines with the Attorney General, nor did they maintain records thereon. The government offered no proof that claimants engaged in any business or other activity, or made any use, of the slot machines beyond the mere act of possessing them. The parties stipulate that the only issue of disputed fact is whether the “free-play” pinball machines are gambling devices within the meaning of the federal statute; claimants admit that the conventional slot machines seized are gambling devices. The characteristic features of the pinball machines are described at length in the stipulation filed in the case. They are coin-activated, electrically operated machines manufactured by Bally Manufacturing Corporation of Chicago, Illinois. These machines feature such devices as a meter to erase games won when the player is paid off, and certain circuitry which may be activated by insertion of additional money into the machine which may give certain game advantages to the player, i. e., increase the possibility of his winning on the basis of chance. That the machines do not themselves pay anything of value but only “free” or additional games is not determinative of their status as gambling devices. Since the machines can be operated so that a person may be entitled to receive money or property as the result of the application of an element of chance, and were designed and manufactured primarily for use in connection with gambling, they are gambling devices under § 1171(a)(2). United States v. Five Gambling Devices, 346 F.Supp. 999 (W. D.La.1972); United States v. Various Gambling Devices, 340 F.Supp. 1200 (N.D.Miss.1972), aff’d 478 F.2d 1194 (5 Cir. 1973). In Various Gambling Devices, claimant Fort appealed from a judgment forfeiting 31 pinball machines identical to the pinball machines in issue and which District Judge Orma R. Smith held were gambling devices. The Fifth Circuit expressly found that such pinball machines, when not registered under the Gambling Devices Act of 1962, were lawfully subject to seizure and forfeiture to the United States. We thus hold that under the broad federal definition the Bally pinball machines, no" }, { "docid": "4964322", "title": "", "text": "predetermined sequence, but strictly at random. 7. Each machine has a meter or provision for a meter to cumulatively record the number of coins inserted into the device and additional meters to record credits awarded, games played and unused credits or a method to calculate unused credits removed. 8. Each machine pays off in additional credits for each winning combination displayed on the face of the device. 9. By betting additional credits or inserting additional coins a player can increase the payoff ratio for each winning combination displayed on the face of the device. 10. Each machine is designed and manufactured to retain a predetermined percentage of all coins inserted into the device. This retention ratio is commonly referred to as the “house percentage” and applies only to games of chance. 11. Each device can be set to retain greater percentages if the owner or operator so desires. 12. Several of the electronic video gambling devices attempt to duplicate some of the more popular casino-type games such as “Draw Poker,” “Five Card Stud”, “Black Jack,” “Keno,” “Joker’s Wild,” “slot machines (Wild Arrow)” to name a few. 13. “Credit,” when used in conjunction with electronic video display gambling devices that simulate casino-type games such as “poker,” “black jack,” or “keno,” is something of value. 14. When a coin is inserted into one of the defendant devices a “credit” will be recorded on a credit display meter which appears on the screen. For every coin inserted into the device a credit will be recorded. 15. When a player is awarded credits, for obtaining a winning combination, these credits will also be recorded on the same credit display meter. The credits recorded for coins and credits awarded for winning combinations are recorded accumulatively, on the same meter; therefore, since no distinction is made, they must be of the same value, namely the value of the coin required to begin play. 16. One exception to the previously stated process is if the device will accept only one coin. The credit for this coin is recorded on the bet meter. If the player should win," }, { "docid": "20818364", "title": "", "text": "machines do not themselves pay anything of value but only “free” or additional games is not determinative of their status as gambling devices. Since the machines can be operated so that a person may be entitled to receive money or property as the result of the application of an element of chance, and were designed and manufactured primarily for use in connection with gambling, they are gambling devices under § 1171(a)(2). United States v. Five Gambling Devices, 346 F.Supp. 999 (W. D.La.1972); United States v. Various Gambling Devices, 340 F.Supp. 1200 (N.D.Miss.1972), aff’d 478 F.2d 1194 (5 Cir. 1973). In Various Gambling Devices, claimant Fort appealed from a judgment forfeiting 31 pinball machines identical to the pinball machines in issue and which District Judge Orma R. Smith held were gambling devices. The Fifth Circuit expressly found that such pinball machines, when not registered under the Gambling Devices Act of 1962, were lawfully subject to seizure and forfeiture to the United States. We thus hold that under the broad federal definition the Bally pinball machines, no less than convéntional slot machines, were gambling devices. Since the forfeitures of the pinball machines in the present proceedings are based upon the failure .to register them under § 1173(a)(3), and not for unlawful interstate transportation under § 1172, the fact that so-called “free-game” pinball machines are legal under Mississippi law is of no consequence. That the machines may be lawful under state law does not render them exempt from the registration and record keeping requirements of § 1173. It is only where the forfeiture is based upon § 1172, because of the express exemption contained therein, that the legal status of a device such as a free game pinball machine specifically sanctioned by the statute of the state into which the device is transported becomes material. Compare United States v. Two Coin-Operated Pinball Machines, 241 F.Supp. 57 (W.D.Ky.1965) where forfeiture was upheld under Kentucky law, with United States v. One Bally Bounty In-Line, etc. Pinball Mach., 261 F.Supp. 187 (D.Md. 1966), where claimant prevailed under Maryland law. Claimants next argue that since the slot" }, { "docid": "7790619", "title": "", "text": "described in the House Report over twenty years ago. These features include: (1) the option of paying from one to eight quarters for a single play, (2) the potential for winning an inordinate number of free games (e.g., up to 400 on a single play), (3) the ability to “knock off” or eliminate accumulated free games from a machine, and (4) devices for measuring the number of free games eliminated from the machine. See Affidavit of William L. Holmes (Dec. 27, 1983). In United States v. Two Coin-Operated Pinball Machine, 241 F.Supp. 57 (W.D.Ky. 1965), aff'd sub nom. United States v. M. Branson Distributing Co., 398 F.2d 929 (6th Cir.1968), the district court concluded that two machines with features similar to those in the present case were gambling devices within the meaning of 15 U.S.C. § 1171(a) and subject to forfeiture under 15 U.S.C. § 1177. The district court made the following pertinent findings of fact: 3. The great number of free games which can be achieved by players, the provision for multiple coin insertion in order to increase the reward for successful play, the facility with which free plays can be eliminated from the free play register and the ease by which free plays so eliminated can be counted renders these devices peculiarly and uniquely suited for gambling purposes. 4. Successful play of these devices cannot be achieved by the application of skill and depends upon the result of the application of an element of chance. 5. The successful player of these devices will win not only a right to replay the devices but also the opportunity to have free games redeemed for cash or merchandise. 241 F.Supp. at 59. The court then concluded: The respondent machines are gambling devices as defined in 15 U.S.C. § 1171 in that they are designed and manufactured primarily for use in connection with gambling and by the operation of which a person may become entitled to receive as a result of an application of an element of chance money or property. 241 F.Supp. at 59. The court added that the respondent machines" }, { "docid": "5457464", "title": "", "text": "LAY, Chief Judge. The district court determined that various coin-operated machines were taxable as gaming devices under 26 U.S.C. § 4461. The court held, however, that the machines were not to be forfeited under 26 U.S.C. § 7302. The owners of the machines have appealed, arguing that the machines do not fall within the definition of 26 U.S.C. § 4462 for several reasons. The Government has cross-appealed, urging that the district court erred in not ordering forfeiture. We hold the machines are subject to the special tax, but that the district court erred in not ordering forfeiture. On appeal the owners of the machines urge inter alia that the machines are games of skill and as such are not gaming devices; that the prizes won are less than the cost to the player and without the possibility of gain; therefore, there can be no tax under the statute. Facts. In September 1978, the machines in question were seized by the Internal Revenue Service (IRS) as gaming devices on which no tax had been paid, at the Fort Smith Fair held at Fort Smith, Arkansas. The owners’ basic argument on appeal is the evidence fails to show that the machines in question were coin-operated gaming devices within the meaning of 26 U.S.C. § 4462. They urge the machines are games of skill, and the element of chance, if any, is insufficient to render the machines gaming devices under the statute. The machines involved in these forfeiture proceedings are referred to as the Poker Reno, Mighty Payloader, Crompton Penny Falls, and the Sweepstakes. Poker Reno Machines. The Poker Reno type machines were described and found to be gaming devices in United States v. 20 “Dealer’s Choice” Machines & Coin Contents of $3.50, 341 F.Supp. 1147 (D.S.C.1972), rev’d on other grounds, 483 F.2d 474 (4th Cir. 1973). Similar machines have been found judicially and administratively to be gaming devices within the meaning of section 4462. United States v. One Bally “Barrel-O-Fun” Coin-Operated Gaming Device, 224 F.Supp. 794 (M.D.Pa.1963), aff’d sub nom. Brozzetti v. Rogers, 337 F.2d 857 (3rd Cir. 1964); Rev. Rul. 72-566," }, { "docid": "19225939", "title": "", "text": "holder of the mortgage and that its claim is entitled to recognition before the claim of the United States. All the pinball machines seized in these actions are “bingo” type machines and have substantially identical features. The deposit of one coin activates the machine and releases five balls for play. The game is played by propelling the balls onto an inclined surface where they descend by gravity through a maze of pegs and springs, eventually dropping into a hole and lighting a corresponding number on the scoreboard. By inserting additional coins a player may increase his chances of winning free games. For example, the free games to be awarded for four numbers in line on the playing field increases progressively from 16 to 480 as additional coins are inserted. After a player has used all five balls, he may obtain a maximum of three extra balls by inserting additional coins. The descent of the balls down the playing surface is determined predominantly by chance, since the machines are equipped with adjustable tilt mechanisms which prevent the player from physically affecting the course of the ball down the playing field. The machines also have a push button or “knock-off” device for releasing free games won which have not been played off. These free games released and not played off are recorded on a meter which is capable of recording up to 999 free games. We think these machines are coin operated gaming devices within the intention of Section 4462(a) (2). Treasury Department Regulations include in a list of machines or devices encompassed by this section a “pinball machine equipped with a push button for releasing free plays and a meter for recording the plays so released, or equipped with provisions for multiple coin insertion for increasing the odds.” 26 CFR § 45.4462-1 (b) (2) (iii). In United States v. Korpan, 354 U.S. 271, 77 S.Ct. 1099, 1 L.Ed.2d 1337 (1957), it was established that pinball machines can be considered gaming devices within the definition of Section 4462(a) (2). In that case the pinball machines were similar to those seized here. Other" }, { "docid": "7790617", "title": "", "text": "which must be corrected. New gambling machines have been developed which are controlled by syndicated crime, but which are not subject to the provisions of the Johnson Act because they are not coin-operated, do not pay off directly or indirectly, and do not have a drum or reel as in the conventional slot machine. Principally they are pinball machines which afford players an opportunity if certain combinations are achieved to register a great number of free games, in some instances up to 999 free games. These machines usually have a mechanism whereby the player can change the odds merely by inserting more money into the machine or increase the number of balls that can be played by inserting more money. These free games can be played off or they can be eliminated from the machine by pressing a button or lever. The number of accumulated free games eliminated from the machine are recorded by a meter and payment to the player for the number of free games canceled is made by the proprietor of the establishment where the gambling machine is located or by his agent. The committee bill broadens the definition of the term “gambling device” in the Johnson Act so as to include such pinball machines and any other mechanical devices which are designed and manufactured primarily for use in connection with gambling and which when operated may deliver as a result of the application of an element of chance any money or property, either directly or indirectly. Pinball and other machines, intended for amusement only, which award a limited number of free plays that are not convertible to money or other things of value, are not covered by this legislation. H.R.Rep. No. 1828, 87th Cong., 2d Sess., reprinted in [1962] U.S.Code Cong. & Ad. News 3809, 3811. From this recitation of legislative history, it is clear that the defendant draw poker-type machines, although technically more advanced, differ little in purpose and design from the machines that Congress sought to prohibit through the Gambling Devices Act of 1962. Indeed, these new machines have many of the same features" } ]

[ { "docid": "16720533", "title": "", "text": "comprising the outer boundaries of the Supreme Court grounds are indistinguishable from other sidewalks in Washington, D.C. and constitute a proper public forum). Conduct of a communicative nature cannot be regulated in “these quintessential public forums” in the same manner as it can be regulated on the streets of a military reservation. See Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976). It cannot be gainsaid that begging implicates expressive conduct or communicative activity. See Anthony J. Rose, Note, The Beggar’s Free Speech Claim, 65 Ind.L.J. 191, 200-02 (1989). As agreed by the parties in International Society, begging is at least “a form of speech.” — U.S. at -, 112 S.Ct. at 2705. In Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980), the Supreme Court struck down an ordinance prohibiting solicitation by charitable organizations that did not use at least seventy-five percent of their revenues for charitable purposes. The Court held that charitable appeals for funds, on the street or door to door, involve a variety of speech interests — communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes— that are within the protection of the First Amendment____ [Solicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on ... social issues, and ... without solicitation the flow of such information and advocacy would likely cease. Id. at 632, 100 S.Ct. at 834; accord Riley v. National Fed. of the Blind of N.C., Inc., 487 U.S. 781, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) (striking down North Carolina statute regulating the fees that professional fundraiser may charge a charity); Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984) (striking down Maryland statute that prohibited charitable organization, in connection with fund raising activity, from paying professional fund raiser’s expenses if those expenses exceeded twenty-five percent of the amount raised). Inherent in all the charitable solicitation cases revolving around the" } ]

[ { "docid": "23480655", "title": "", "text": "for a nonpublic forum, the district court found that the prohibition on solicitation was reasonable in light of the City’s interests in promoting the commercial purpose of the Fremont Street Experience. As we have concluded, the appropriate standard is that which pertains to a public forum. Because solicitation is an expressive activity, and hence is protected under the First Amendment, the district court will need to determine on remand whether the City is able to show that the restriction is narrowly tailored to serve a significant government interest without “burdenfing] substantially more speech than is necessary to further the government’s legitimate interests.” Ward, 491 U.S. at 798-99, 109 S.Ct. 2746; see also Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980) (holding that “charitable appeals for funds, on the street or door-to-door, involve a variety of speech interests — communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes — that are within the protection of the First Amendment”); Gaudiya, 952 F.2d at 1064 (“ ‘Informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues’ is fully protected.”). D. Use of Tables Section 11.68.100(H)’s ban on the unauthorized erection of structures includes “[t]he placement of any table ... within the Pedestrian Mall.” Just as with the solicitation ordinance, we remand this issue to the district court to apply the heightened standard of scrutiny. Remand to the district court also will allow further exploration of the factual record, as well as clarification regarding whether the Plaintiffs intended to assert an as-applied or facial challenge. to this ordinance. The Plaintiffs may wish to clarify their claim by seeking leave to amend their complaint in the district court. We note that in order for the Plaintiffs to challenge successfully the constitutionality of the City’s restrictions on the use of tables, they must show that the erection of tables falls under the protection of the First Amendment. Roulette v. City of Seattle, 97 F.3d 300 (9th Cir.1996);" }, { "docid": "16895700", "title": "", "text": "in 1988, the Court reiterated that Schaumburg and Munson, “teach that the solicitation of charitable contributions is protected speech[.]” Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 789, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988). In 1990, in United States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990) (plurality opinion), while the Court held constitutional, as applied, a United States Postal Service regulation prohibiting the solicitation of alms and contributions on postal premises, the Court also stated that “Solicitation is a recognized form of speech protected by the First Amendment.” Kokinda, 497 U.S. at 725, 110 S.Ct. 3115 (citing Schaumburg, 444 U.S. at 629, 100 S.Ct. 826; Riley, 487 U.S. at 788-789, 108 S.Ct. 2667). Thus, the First Amendment protects charitable solicitation performed by organizations. But does the First Amendment protect the solicitation of alms when performed by an individual not affiliated with a group? We hold that it does. We find persuasive the Seventh Circuit’s reasoning in Gresham v. Peterson, 225 F.3d 899 (7th Cir.2000), in which a plaintiff mounted an as-applied challenge, on First Amendment grounds, to an Indianapolis ordinance that prohibited soliciting in public places. The Seventh Circuit acknowledged that “the Supreme Court has not resolved directly the constitutional limita tions on [panhandling laws] as they apply to individual beggars,” but noted that the Court “has provided clear direction on how they apply to organized charities, not-for-profits, and political groups.” Gresham, 225 F.3d at 903 (citing Riley, 487 U.S. at 789, 108 S.Ct. 2667; Joseph H. Munson Co., 467 U.S. at 959-60, 104 S.Ct. 2839; Schaumburg, 444 U.S. at 632, 100 S.Ct. 826). We agree with the Seventh Circuit’s reasoning that “Schaumburg provides the appropriate standard to analyze” whether the First Amendment protects begging. Gresham, 225 F.3d at 904-05. Gresham analogized panhandlers to the charity in Schaumburg, saying that “[l]ike the organized charities, [the panhandlers’] messages cannot always be easily separated from their need for money.” Id. at 904. The Gresham panel concluded by saying that “[w]hile some communities might wish for all solicitors, beggars and advocates of" }, { "docid": "9642184", "title": "", "text": "and services.” Id. Commercial speech, on the other hand, has been placed lower in the First Amendment food chain, somewhere between political speech and pornography. It deserves protection, but authorities are more free to regulate commercial speech than core-value speech. Other courts examining issues similar to those at hand did not distinguish between solicitation for organized charities and solicitation by individual beggars. The Eleventh Circuit held that “[l]ike other charitable solicitation, begging is speech entitled to First Amendment protection.” Smith, 177 F.3d at 956 (citing Schaumburg, 444 U.S. at 632, 100 S.Ct. 826). The Second Circuit likewise held that for First Amendment purposes, the distinction between begging for a charity and begging for one’s self is not significant. Loper, 999 F.2d at 704. “We see little difference between those who solicit for organized charities and those who solicit for themselves in regard to the message conveyed.” Id. Both Smith and Loper held that limitations on panhandling must be analyzed under the same Schaumburg framework as limitations for charities. Smith, 177 F.3d at 956; Loper, 999 F.2d at 704. Indeed, the Court’s analysis in Schaum-burg suggests little reason to distinguish between beggars and charities in terms of the First Amendment protection for their speech. Solicitation, the Court reasoned, “is characteristically intertwined with informative and perhaps persuasive speech” which the First Amendment protects. Schaumburg, 444 U.S. at 632, 100 S.Ct. 826. Because they are intimately connected, solicitation cannot be restricted without also risking the flow of information. Importantly, the Schaumburg Court expressly rejected the suggestion that the message and the solicitation could be considered severable. Id. at 628-32, 100 S.Ct. 826. The village had argued that the ordinance prohibited only the request for money and left the charity free to propagate its views, but the Court called this view of the First Amendment protection for solicitors “too limited.” After extensively reviewing its own case law on the subject, the Court held that restrictions on a charity’s request for money necessarily implicate restrictions on speech itself. Id. at 632, 100 S.Ct. 826. Similarly, the Indianapolis ordinance protects the communication of ideas by solicitors" }, { "docid": "12275499", "title": "", "text": "(McKinney 1989). With respect to the First Amendment issues, however, the difficult question for me is whether any legally justifiable distinction can be drawn between begging for one’s self and solicitation by organized charities. I am unable to do so, and therefore I respectfully dissent from the Court’s disposition of these claims. According to the majority, common sense tells us that begging enjoys no First Amendment protection because it is conduct unassociated with any particularized message and because begging, unlike “charitable solicitation,” is mere solicitation for money with a diminished communicative content. I agree that common sense and everyday experience should inform our decision. Their true teaching, however, is that both beggars and organized charities who send representatives into the subway have one primary goal: in the words of the majority, “the transfer of money.” Nevertheless, in Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980), the Supreme Court saw fit to extend First Amendment protection to the fundraising efforts of organized charities. In my opinion, beggars deserve that same protection. In Schaumburg, the Court held that charitable solicitation is protected because it “is characteristically intertwined with ... speech seeking support for particular causes or for particular views on economic, political, or social issues.” 444 U.S. at 632, 100 S.Ct. at 834. Notably, the Court did not suggest that charitable solicitation is protected expression because it is always accompanied by speech on social issues. If that were the test, then it is doubtful that any organized charity soliciting contributions in the New York subway would be engaged in protected expression. Those charities receive countless donations without engaging in any discussion whatsoever with the typical donor rushing to catch a train. Rather, the Schaumburg Court held that First Amendment protection attaches to all charitable solicitation, whether or not any speech incident to the solicitation actually takes place, because a sufficient nexus exists between a charity’s expression of ideas and its fundraising. That is, a charity’s representatives often explain the purpose of the charity’s work to potential donors and perhaps engage in" }, { "docid": "2174515", "title": "", "text": "court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). We agree with the district court that Appellants have done so here for the purposes of the motion to dismiss. As a preliminary matter, we note that the speech and expressive conduct that comprise begging merit First Amendment protection. The Supreme Court has held that the solicitation of “charitable contributions” is protected speech. Riley v. Nat’l Fed’n of the Blind of N.C., 487 U.S. 781, 789, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988). Several of our sister circuits have extended that holding to begging, which is simply solicitation on behalf of the speaker. See, e.g., Smith v. City of Fort Lauderdale, 177 F.3d 954, 956 (11th Cir.1999) (“Like other charitable solicitation, begging is speech entitled to First Amendment protection.”); Loper v. New York City Police Dep’t, 999 F.2d 699, 704 (2d Cir.1993) (“We see little difference between those who solicit for organized charities and those who solicit for themselves in regard to the message conveyed. The former are communicating the needs of others while the latter are communicating their personal needs. Both solicit the charity of others. The distinction is not significant for First Amendment purposes.”). We agree that begging is communicative activity within the protection of the First Amendment. The City argues on cross-appeal that Appellants lack standing because they failed to allege that they have begged in the past, or wish to beg in the future, specifically within the two fifty-foot “buffer zones” when those streets are open to vehicular traffic, as prohibited by the Ordinance. According to the City, this lack of specificity prevents us from knowing whether Appellants are actually harmed by subsection (a)(9) of the Ordinance — i.e., whether they can establish an injury-in-fact for standing purposes. Because we find Appellants have pleaded sufficiently specific facts to demonstrate they have suffered “an invasion of a legally protected interest,” White Tail Park, Inc. v. Stroube, 413 F.3d 451, 460 (4th Cir.2005) (internal quotation marks omitted), that is “concrete and particularized” and “actual" }, { "docid": "16895704", "title": "", "text": "those who solicit for organized charities “are communicating the needs of others[,]” while those who solicit for themselves “are communicating their personal needs.” Id. According to the Loper panel, “[b]oth solicit the charity of others. The distinction is not a significant one for First Amendment purposes.” Id. (citation omitted). The Eleventh Circuit, in Smith v. City of Fort Lauderdale, Fla., 177 F.3d 954, 955 (11th Cir.1999), held that a city’s regulation proscribing begging on a certain five-mile strip of beach and two attendant sidewalks was narrowly tailored to serve the city’s legitimate interests. But the court began its analysis by stating that “[l]ike other charitable solicitation, begging is speech entitled to First Amendment protection.” Id. at 956 (footnote omitted) (citing, Loper 999 F.2d 699 at 704; Schaumburg, 444 U.S. at 632, 100 S.Ct. 826). This year, the Fourth Circuit, in Clatterbuck v. City of Charlottesville, 708 F.3d 549, 551 (4th Cir.2013), addressed the question of whether a municipal ordinance, that prohibited people from soliciting immediate donations in two streets near a downtown shopping area, unconstitutionally restricted the free speech of individuals who regularly begged there. The court noted, “[a]s a preliminary matter,” that “the speech and expressive conduct that comprise begging merit First Amendment protection.” Id. at 553. The court observed that the United States Supreme Court has “held that the solicitation of ‘charitable contributions’ is protected speech.” Id. (quoting Riley, 487 U.S. at 789, 108 S.Ct. 2667). The court also observed that several other United States Courts of Appeals had “extended that holding to begging, which is simply solicitation on behalf of the speaker.” Id. (citing Smith 177 F.3d at 956; Loper, 999 F.2d at 704). The court concluded by stating “[w]e agree that begging is communicative activity within the protection of the First Amendment.” Id. Michigan relies on several authorities to argue that the First Amendment does not protect begging, or soliciting alms — but we find not one of these authorities persuasive. First, Michigan cites Part II of Justice Kennedy’s concurrence in International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 703, 112 S.Ct. 2701," }, { "docid": "16895698", "title": "", "text": "[a term’s] common and approved usage.” Shinkle v. Shinlde, 255 Mich.App. 221, 668 N.W.2d 481, 485 (2008) (citing Horace v.Pontiac, 456 Mich. 744, 575 N.W.2d 762, 767 (1998)). Here, Attorney General Schuette resorted to a dictionary definition of begging in his opening brief, defining begging as “soliciting alms.” The New American Heritage Dictionary 119 (5th ed.1976). We see no reason not to use, for the purposes of this appeal, this commonsense definition of begging as “soliciting alms.” While the United States Supreme Court has not, as Michigan correctly points out in its briefs, directly decided the question of whether the First Amendment protects soliciting alms when done by an individual, the Court has held — repeatedly—that the First Amendment protects charitable solicitation performed by organizations. In Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 622, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980), the Court addressed the validity, under the First and Fourteenth Amendments, of a municipal ordinance that prohibited charitable organizations from soliciting contributions unless they used at least seventy-five percent of their receipts for what the ordinance defined as charitable purposes. The plaintiffs challenged “the facial validity of the village ordinance on First Amendment grounds,” id. at 627, 100 S.Ct. 826, and the Court affirmed the Seventh Circuit’s upholding of the district court’s “judgment of facial invalidity” of the ordinance. Id. at 634, 100 S.Ct. 826. After summarizing its relevant cases, the Court held that its “[p]rior authorities, therefore, clearly establish that charitable appeals for funds, on the street or door to door, involve a variety of speech interests — communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes— that are within the protection of the First Amendment.” Id. at 632, 100 S.Ct. 826. The Court has repeatedly reaffirmed Schaumburg’s holding that the First Amendment protects charitable solicitation. In 1984, the Court observed that Schaumburg had determined that “charitable solicitations are so intertwined with speech that they are entitled to the protection of the First Amendment.” Joseph H. Munson Co., 467 U.S. at 959, 104 S.Ct. 2839. Then," }, { "docid": "9642182", "title": "", "text": "me money.” Several courts before us, as well as many commentators, have grappled with understanding panhandling laws in light of the First Amendment guarantee of free speech and the constitutional right to due process. See, e.g., Smith v. City of Fort Lauderdale, 177 F.3d 954 (11th Cir.1999); Loper v. New York City Police Dep’t, 999 F.2d 699 (2d Cir.1993). To this point, the Supreme Court has not resolved directly the constitutional limitations on such laws as they apply to individual beggars, but has provided clear direction on how they apply to organized charities, not-for-profits and political groups. See Riley v. National Fed’n of the Blind of North Carolina, Inc., 487 U.S. 781, 789, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988); Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 959-60, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980). To the extent the Indianapolis ordinance could be enforced against organized charities, such as the United Way, Salvation Army or others, the Supreme Court’s holding in Schaumburg would control resolution of the case. In Schaumburg, the Supreme Court considered a local prohibition on solicitation by charities that did not use a certain percentage of their contributions for charitable purposes. 444 U.S. at 623-24, 100 S.Ct. 826. As a threshold consideration, the Court determined that solicitations by organized charities were entitled to First Amendment protection. Id. at 632, 100 S.Ct. 826. The Court found that charities often engage in core First Amendment speech while soliciting donations, and that without such appeals for support, the flow of information on many social, economic, political and cultural top ics would cease. As such, the solicitations by organized charities were “within the protection of the First Amendment” although “subject to reasonable regulation.” Id. The Court placed charitable solicitations by organizations in a category of speech close to the heart of the First Amendment, and distinguished it from “purely commercial speech” which is “primarily concerned with providing information about the characteristics and costs of goods" }, { "docid": "2174511", "title": "", "text": "vehicular traffic. Solicit means to request an immediate donation of money or other thing of value from another person, regardless of the solicitor’s purpose or intended use of the money or other thing of value. A solicitation may take the form of, without limitation, the spoken, written, or printed word, or by other means of communication (for example: an outstretched hand, an extended cup or hat, etc.), (c) Any person violating the provisions of this section shall be guilty of a Class 3 misdemeanor. Charlottesville City Code, § 28-31 (as amended Aug. 16, 2010); J.A. 14. Albert Clatterbuck, Christopher Martin, Earl McCraw, John Jordan, and Michael Sloan (collectively, “Appellants”) are “impecunious and reliant to a certain extent on begging to sustain [themselves.]” J.A. 7. One of the locations where each Appellant begs is “East Main Street in the City, commonly known as the Downtown Mall.” Id. The complaint alleges few facts about the Downtown Mall, other than that it “has ■ numerous restaurants and cafes with outdoor seating, and [Appellants] regularly beg within view of those restaurants and cafes.” Id. B. Appellants brought this action under 42 U.S.C. § 1983 against the City to challenge the constitutionality of the Ordinance, asserting that it violates their First Amendment right to beg, impermissibly restraining their protected speech activities and livelihood. The complaint alleges that the City adopted the Ordinance “in order to restrict the right of the impoverished to solicit funds for their own well-being,” and challenges the Ordinance as a content-based regulation that criminalizes speech based on the content of the communication. J.A. 9. Further, the complaint states that “[a]s a direct and proximate result of the conduct of [the City] in enacting the ordinance, [Appellants] have and will continue to suffer harm, including, but not limited to damages to the right to communicate to the general public as well as emotional distress.” Id. at 9-10. Appellants seek declaratory and injunctive relief, damages, and attorneys’ fees and costs. The City filed a motion to dismiss the action for lack of standing and for failure to state a claim pursuant to Federal" }, { "docid": "16895703", "title": "", "text": "public place for the purpose of begging....” N.Y. Penal Law § 240.35(1) (McKinney 1989). Loper, like Gresham, relied on Schaumburg’s holding that “ ‘charitable appeals for funds, on the street or door to door, involve a variety of speech interests — communication of information, the dissemination and propagation of view and ideas, and the advocacy of causes — that are within the protection of the First Amendment.’” Loper, 999 F.2d at 704 (quoting Schaumburg, 444 U.S. at 632, 100 S.Ct. 826). Loper explained that “[inherent in all the charitable solicitation cases revolving around the First Amendment is the concept that ‘[cjanvassers in such contexts are necessarily more than solicitors for money.’” Id. (quoting Schaumburg, 444 U.S. at 632, 100 S.Ct. 826). The Loper panel explained that “[bjegging frequently is accompanied by speech indicating the need for food, shelter, clothing, medical care or transportation.” Loper, 999 F.2d at 704. It concluded that[,] “in regard to the message conveyed,” it saw “little difference between those who solicit for organized charities and those who solicit for themselves[,]” because those who solicit for organized charities “are communicating the needs of others[,]” while those who solicit for themselves “are communicating their personal needs.” Id. According to the Loper panel, “[b]oth solicit the charity of others. The distinction is not a significant one for First Amendment purposes.” Id. (citation omitted). The Eleventh Circuit, in Smith v. City of Fort Lauderdale, Fla., 177 F.3d 954, 955 (11th Cir.1999), held that a city’s regulation proscribing begging on a certain five-mile strip of beach and two attendant sidewalks was narrowly tailored to serve the city’s legitimate interests. But the court began its analysis by stating that “[l]ike other charitable solicitation, begging is speech entitled to First Amendment protection.” Id. at 956 (footnote omitted) (citing, Loper 999 F.2d 699 at 704; Schaumburg, 444 U.S. at 632, 100 S.Ct. 826). This year, the Fourth Circuit, in Clatterbuck v. City of Charlottesville, 708 F.3d 549, 551 (4th Cir.2013), addressed the question of whether a municipal ordinance, that prohibited people from soliciting immediate donations in two streets near a downtown shopping area, unconstitutionally" }, { "docid": "16895708", "title": "", "text": "initially framed the issue as “whether the prohibition of begging and panhandling in the New York City subway system violate[d] the First Amendment of the United States Constitution.” Young, 903 F.2d at 147 (footnote omitted). The regulation provided that “ ‘no person, unless duly authorized ... shall upon any facility or conveyance ... solicit alms, subscription or contribution for any purpose.’ ” Id. at 148 (quoting N.Y. Comp. Codes R. & Regs. tit. 21, § 1050.6(b) (1989)). The Second Circuit opined that “[cjommon sense” dictates that “begging is much more ‘conduct’ than it is ‘speech.’ ” Id. at 153. Therefore, the court reframed the issue as “whether begging constitutes the kind of ‘expressive conduct’ protected to some extent by the First Amendment.” Id. Young read Schaumburg’s holding to be limited to appeals by organized charities; only these solicitations involve a variety of speech interests including communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes. Id. at 155. Young asserted that “neither Schaumburg nor its progeny stand for the proposition that begging and panhandling are protected speech under the First Amendment.” Id. Rather, the court said, Schaumburg, Munson and Riley “hold that there is a sufficient nexus between solicitation by organized charities and a ‘variety of speech interests’ to invoke protection under the First Amendment.” Id. Young displayed the panel’s distaste for begging, writing that “[wjhile organized charities serve community interests by enhancing communication and disseminating ideas, the conduct of begging and panhandling in the subway amounts to nothing less than a menace to the common good.” Young, 903 F.2d at 156 (citing Taxpayers for Vincent, 466 U.S. at 805, 104 S.Ct. 2118). We decline to follow the Young majority’s reasoning. We find more persuasive Young’s dissent, which held that there is no “legally justifiable distinction” between “begging for one’s self and solicitation by organized charities.” Young, 903 F.2d at 164 (Meskill, J., dissenting). The dissent read Schaumburg — as we do — as holding that “charitable solicitation is protected because it ‘is characteristically intertwined with ... speech seeking support for particular causes or" }, { "docid": "19384183", "title": "", "text": "other charitable solicitation, begging is speech entitled to First Amendment protection. See Loper v. New York City Police Dept., 999 F.2d 699, 704 (2d Cir.1993) (holding “begging is at least ‘a form of speech’ ” because of the lack of material distinctions between begging and other forms of charitable solicitation); see also Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980) (holding charitable organizations’ solicitations for contributions are protected speech). Additionally, this Court’s precedent conclusively establishes that the Fort Lauder-dale Beach area covered by Rule 7.5(c)-consisting of beach and sidewalk spaces-is a public forum. See One World Family Now v. City of Miami Beach, 175 F.3d 1282 (11th Cir.1999) (holding an oceanfront strip of public sidewalk in the historic Art Deco district of Miami Beach to be a “quintessential public forum”); International Caucus of Labor Committees v. City of Montgomery, 111 F.3d 1548, 1550 (11th Cir.1997) (confirming the longstanding principle that “[a] sidewalk, although specifically constructed for pedestrian traffic, also constitutes a public forum”); Naturist Society, Inc. v. Fillyaw, 958 F.2d 1515, 1521-23 (11th Cir.1992) (holding John D. MacArthur Beach State Park to be a public forum). Nonetheless, Rule 7.5(c)’s restrictions on begging in the Fort Lauder-dale Beach area survive Plaintiffs’ First Amendment challenge. Even in a public forum, the government may “enforce regulations of the time, place, and manner of expression which [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); see also One World Family Now, 175 F.3d at 1287. Plaintiffs do not dispute that Rule 7.5(c) is content-neutral and leaves open ample alternative channels of communication. Plaintiffs also expressly concede that the City’s interest in providing a safe, pleasant environment and eliminating nuisance activity on the beach is “a significant government interest.” Plaintiffs argue only that Rule 7.5(c)’s begging restrictions are not narrowly tailored to serve that interest. We disagree. Rule 7.5(c)’s restrictions on" }, { "docid": "16895701", "title": "", "text": "in which a plaintiff mounted an as-applied challenge, on First Amendment grounds, to an Indianapolis ordinance that prohibited soliciting in public places. The Seventh Circuit acknowledged that “the Supreme Court has not resolved directly the constitutional limita tions on [panhandling laws] as they apply to individual beggars,” but noted that the Court “has provided clear direction on how they apply to organized charities, not-for-profits, and political groups.” Gresham, 225 F.3d at 903 (citing Riley, 487 U.S. at 789, 108 S.Ct. 2667; Joseph H. Munson Co., 467 U.S. at 959-60, 104 S.Ct. 2839; Schaumburg, 444 U.S. at 632, 100 S.Ct. 826). We agree with the Seventh Circuit’s reasoning that “Schaumburg provides the appropriate standard to analyze” whether the First Amendment protects begging. Gresham, 225 F.3d at 904-05. Gresham analogized panhandlers to the charity in Schaumburg, saying that “[l]ike the organized charities, [the panhandlers’] messages cannot always be easily separated from their need for money.” Id. at 904. The Gresham panel concluded by saying that “[w]hile some communities might wish for all solicitors, beggars and advocates of various causes be vanished from the streets, the First Amendment guarantees their right to be there, deliver their pitch and ask for support.” Id. (citing Schaumburg, 444 U.S. at 632, 100 S.Ct. 826). We further agree with Gresham’s observation that “[i]ndeed, the Court’s analysis in Schaumburg suggests little reason to distinguish between beggars and charities in terms of the First Amendment protection for their speech.” Id. Our sister circuits — the Second, Eleventh, and Fourth Circuits — in cases decided before and after Gresham, have similarly held that begging is a type of solicitation protected by the First Amendment. We find these cases to be persuasive authority, as well, for our holding that begging is a form of solicitation that the First Amendment protects. The Second Circuit, in Loper v. New York City Police Department, 999 F.2d 699, 706 (2d Cir.1993), affirmed the district court’s judgment that had declared unconstitutional, on First Amendment grounds, a state statute which stated that “[a] person is guilty of loitering when he: l.[l]oiters, remains or wanders about in a" }, { "docid": "2174510", "title": "", "text": "Reversed and remanded by published opinion. Judge DUNCAN wrote the opinion, in which Judge AGEE and Judge DAVIS joined. OPINION DUNCAN, Circuit Judge: This case presents the question of whether a municipal ordinance, which prohibits individuals from soliciting immediate donations near two streets that run through the Downtown Mall in Charlottes-ville, Virginia, unconstitutionally restricts the free speech of individuals who regularly beg on the Downtown Mall. We hold that the district court erred by resolving this issue at the pleadings stage, and reverse and remand for further proceedings. I. A. The City of Charlottesville (the “City”) has adopted an ordinance that proscribes “soliciting” in certain areas of the City. Section 28-31 of the Charlottesville City Code (the “Ordinance”) reads in relevant part as follows: (a) It shall be unlawful for any person to solicit money or other things of value, or to solicit the sale of goods or services: (9) On the Downtown Mall within fifty (50) feet (in any direction) of 2nd Street West and 4th Street East, when those streets are open to vehicular traffic. Solicit means to request an immediate donation of money or other thing of value from another person, regardless of the solicitor’s purpose or intended use of the money or other thing of value. A solicitation may take the form of, without limitation, the spoken, written, or printed word, or by other means of communication (for example: an outstretched hand, an extended cup or hat, etc.), (c) Any person violating the provisions of this section shall be guilty of a Class 3 misdemeanor. Charlottesville City Code, § 28-31 (as amended Aug. 16, 2010); J.A. 14. Albert Clatterbuck, Christopher Martin, Earl McCraw, John Jordan, and Michael Sloan (collectively, “Appellants”) are “impecunious and reliant to a certain extent on begging to sustain [themselves.]” J.A. 7. One of the locations where each Appellant begs is “East Main Street in the City, commonly known as the Downtown Mall.” Id. The complaint alleges few facts about the Downtown Mall, other than that it “has ■ numerous restaurants and cafes with outdoor seating, and [Appellants] regularly beg within view of" }, { "docid": "16895699", "title": "", "text": "of their receipts for what the ordinance defined as charitable purposes. The plaintiffs challenged “the facial validity of the village ordinance on First Amendment grounds,” id. at 627, 100 S.Ct. 826, and the Court affirmed the Seventh Circuit’s upholding of the district court’s “judgment of facial invalidity” of the ordinance. Id. at 634, 100 S.Ct. 826. After summarizing its relevant cases, the Court held that its “[p]rior authorities, therefore, clearly establish that charitable appeals for funds, on the street or door to door, involve a variety of speech interests — communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes— that are within the protection of the First Amendment.” Id. at 632, 100 S.Ct. 826. The Court has repeatedly reaffirmed Schaumburg’s holding that the First Amendment protects charitable solicitation. In 1984, the Court observed that Schaumburg had determined that “charitable solicitations are so intertwined with speech that they are entitled to the protection of the First Amendment.” Joseph H. Munson Co., 467 U.S. at 959, 104 S.Ct. 2839. Then, in 1988, the Court reiterated that Schaumburg and Munson, “teach that the solicitation of charitable contributions is protected speech[.]” Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 789, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988). In 1990, in United States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990) (plurality opinion), while the Court held constitutional, as applied, a United States Postal Service regulation prohibiting the solicitation of alms and contributions on postal premises, the Court also stated that “Solicitation is a recognized form of speech protected by the First Amendment.” Kokinda, 497 U.S. at 725, 110 S.Ct. 3115 (citing Schaumburg, 444 U.S. at 629, 100 S.Ct. 826; Riley, 487 U.S. at 788-789, 108 S.Ct. 2667). Thus, the First Amendment protects charitable solicitation performed by organizations. But does the First Amendment protect the solicitation of alms when performed by an individual not affiliated with a group? We hold that it does. We find persuasive the Seventh Circuit’s reasoning in Gresham v. Peterson, 225 F.3d 899 (7th Cir.2000)," }, { "docid": "16895702", "title": "", "text": "various causes be vanished from the streets, the First Amendment guarantees their right to be there, deliver their pitch and ask for support.” Id. (citing Schaumburg, 444 U.S. at 632, 100 S.Ct. 826). We further agree with Gresham’s observation that “[i]ndeed, the Court’s analysis in Schaumburg suggests little reason to distinguish between beggars and charities in terms of the First Amendment protection for their speech.” Id. Our sister circuits — the Second, Eleventh, and Fourth Circuits — in cases decided before and after Gresham, have similarly held that begging is a type of solicitation protected by the First Amendment. We find these cases to be persuasive authority, as well, for our holding that begging is a form of solicitation that the First Amendment protects. The Second Circuit, in Loper v. New York City Police Department, 999 F.2d 699, 706 (2d Cir.1993), affirmed the district court’s judgment that had declared unconstitutional, on First Amendment grounds, a state statute which stated that “[a] person is guilty of loitering when he: l.[l]oiters, remains or wanders about in a public place for the purpose of begging....” N.Y. Penal Law § 240.35(1) (McKinney 1989). Loper, like Gresham, relied on Schaumburg’s holding that “ ‘charitable appeals for funds, on the street or door to door, involve a variety of speech interests — communication of information, the dissemination and propagation of view and ideas, and the advocacy of causes — that are within the protection of the First Amendment.’” Loper, 999 F.2d at 704 (quoting Schaumburg, 444 U.S. at 632, 100 S.Ct. 826). Loper explained that “[inherent in all the charitable solicitation cases revolving around the First Amendment is the concept that ‘[cjanvassers in such contexts are necessarily more than solicitors for money.’” Id. (quoting Schaumburg, 444 U.S. at 632, 100 S.Ct. 826). The Loper panel explained that “[bjegging frequently is accompanied by speech indicating the need for food, shelter, clothing, medical care or transportation.” Loper, 999 F.2d at 704. It concluded that[,] “in regard to the message conveyed,” it saw “little difference between those who solicit for organized charities and those who solicit for themselves[,]” because" }, { "docid": "3166005", "title": "", "text": "first determine whether begging includes speech or expressive conduct protected under the First Amendment. Bays v. City of Fairborn, 668 F.3d 814, 820 (6th Cir.2012). If begging is protected speech or expressive conduct, First Amendment protections are triggered, and the Court must determine whether the government has justified its ban on begging. Miller v. City of Cincinnati 622 F.3d 524, 533 (6th Cir.2010). In making that determination, the Court considers the scope of the restriction, examining particularly whether the restriction is content-specific and to what forums the restriction applies. Id. In general, the more a content-based speech restriction applies to traditional public forums, as opposed to more limited venues, the stricter the scrutiny, and the less likely the restriction will pass muster. Id. A. Begging Includes Protected Speech and Expressive Conduct. Begging plainly conveys a message: it communicates, whether verbally or non-verbally, a request for financial or material assistance. A beggar’s message is analogous to other charitable solicitation: in both situations, the speaker is soliciting financial assistance, the beggar for him or herself, and the charitable fundraiser for a third party. Courts have held repeatedly that charitable solicitations are a form of protected speech. Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 633, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980) (citing Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940)); Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945); Hynes v. Mayor of Oradell, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976); Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). It is well-established that “[c]haritable appeals for funds, on the street or door to door, involve a variety of speech interests — communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes— that are within the protection of the First Amendment.” Id. The same rationale logically applies to begging, which involves similar speech interests. As the Second Circuit observes, [w]hile ... begging does not always involve the transmission of a particularized social" }, { "docid": "9642183", "title": "", "text": "the United Way, Salvation Army or others, the Supreme Court’s holding in Schaumburg would control resolution of the case. In Schaumburg, the Supreme Court considered a local prohibition on solicitation by charities that did not use a certain percentage of their contributions for charitable purposes. 444 U.S. at 623-24, 100 S.Ct. 826. As a threshold consideration, the Court determined that solicitations by organized charities were entitled to First Amendment protection. Id. at 632, 100 S.Ct. 826. The Court found that charities often engage in core First Amendment speech while soliciting donations, and that without such appeals for support, the flow of information on many social, economic, political and cultural top ics would cease. As such, the solicitations by organized charities were “within the protection of the First Amendment” although “subject to reasonable regulation.” Id. The Court placed charitable solicitations by organizations in a category of speech close to the heart of the First Amendment, and distinguished it from “purely commercial speech” which is “primarily concerned with providing information about the characteristics and costs of goods and services.” Id. Commercial speech, on the other hand, has been placed lower in the First Amendment food chain, somewhere between political speech and pornography. It deserves protection, but authorities are more free to regulate commercial speech than core-value speech. Other courts examining issues similar to those at hand did not distinguish between solicitation for organized charities and solicitation by individual beggars. The Eleventh Circuit held that “[l]ike other charitable solicitation, begging is speech entitled to First Amendment protection.” Smith, 177 F.3d at 956 (citing Schaumburg, 444 U.S. at 632, 100 S.Ct. 826). The Second Circuit likewise held that for First Amendment purposes, the distinction between begging for a charity and begging for one’s self is not significant. Loper, 999 F.2d at 704. “We see little difference between those who solicit for organized charities and those who solicit for themselves in regard to the message conveyed.” Id. Both Smith and Loper held that limitations on panhandling must be analyzed under the same Schaumburg framework as limitations for charities. Smith, 177 F.3d at 956; Loper, 999" }, { "docid": "16895707", "title": "", "text": "at the physical exchange of money, which is an element of conduct interwoven with otherwise expressive solicitation.” Id. at 705, 112 S.Ct. 2701. We decline to follow the reasoning in Part II of Justice Kennedy’s concurrence in Lee for three reasons. First, to the extent that Part II of Justice Kennedy’s concurrence argues that the “physical exchange of money” may be isolated from the act of solicitation, it runs contrary to Schaumburg’s holding that solicitation of charitable donations is “characteristically intertwined with informative and perhaps persuasive speech[.]” Schaumburg, 444 U.S. at 632, 100 S.Ct. 826. Schaumburg does not suggest that the physical exchange of money may be isolated; it is “intertwined” with speech that the First Amendment protects. Second, Part II of Justice Kennedy’s concurrence is not Lee’s holding. And third, Justice Kennedy wrote Part II without another Justice joining him. Michigan also cites the Second Circuit’s decision in Young v. New York City Transit Authority, 903 F.2d 146 (2d Cir.1990), as authority for the proposition that the First Amendment does not protect begging. Young initially framed the issue as “whether the prohibition of begging and panhandling in the New York City subway system violate[d] the First Amendment of the United States Constitution.” Young, 903 F.2d at 147 (footnote omitted). The regulation provided that “ ‘no person, unless duly authorized ... shall upon any facility or conveyance ... solicit alms, subscription or contribution for any purpose.’ ” Id. at 148 (quoting N.Y. Comp. Codes R. & Regs. tit. 21, § 1050.6(b) (1989)). The Second Circuit opined that “[cjommon sense” dictates that “begging is much more ‘conduct’ than it is ‘speech.’ ” Id. at 153. Therefore, the court reframed the issue as “whether begging constitutes the kind of ‘expressive conduct’ protected to some extent by the First Amendment.” Id. Young read Schaumburg’s holding to be limited to appeals by organized charities; only these solicitations involve a variety of speech interests including communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes. Id. at 155. Young asserted that “neither Schaumburg nor its progeny stand for the" }, { "docid": "3166006", "title": "", "text": "charitable fundraiser for a third party. Courts have held repeatedly that charitable solicitations are a form of protected speech. Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 633, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980) (citing Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940)); Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945); Hynes v. Mayor of Oradell, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976); Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). It is well-established that “[c]haritable appeals for funds, on the street or door to door, involve a variety of speech interests — communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes— that are within the protection of the First Amendment.” Id. The same rationale logically applies to begging, which involves similar speech interests. As the Second Circuit observes, [w]hile ... begging does not always involve the transmission of a particularized social or political message ... it usually involves some communication of that nature. Begging frequently is accompanied by speech indicating the need for food, shelter, clothing, medical care or transportation. Even without particularized speech, however, the presence of ... [a] person holding out his or her hand or a cup to receive a donation itself conveys a message of need for support and assistance. We see little difference between those who solicit for organized charities and those who solicit for themselves in regard to the message conveyed. The former are communicating the needs of others while the latter are communicating their personal needs. Both solicit the charity of others. The distinction is not a significant one for First Amendment purposes. Loper v. New York City Police Department, 999 F.2d 699, 704 (2d Cir.1993). See also Smith v. City of Ft. Lauderdale, 177 F.3d 954, 956 (11th Cir.1999) (“[l]ike other charitable solicitation, begging is speech entitled to First Amendment protection.”). For First Amendment purposes, begging and charitable solicitations are both entitled to protection. Begging may, of course," } ]

[ { "docid": "11993252", "title": "", "text": "revisited pre-arraignment searches several times, on each occasion reaffirming the individualized reasonable suspicion standard laid out in Giles. In Ward v. County of San Diego, 791 F.2d 1329 (9th Cir.1986), we found no qualified immunity for a San Diego County Sheriff who had enacted a blanket strip search policy which resulted in the visual body cavity search of a misdemeanor arrestee prior to a determination regarding the ar- restee’s eligibility for an own recognizance release. In Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir.1989), we held that the strip search of a person arrested for felony grand theft auto was valid because the charge was “sufficiently associated with violence to justify a visual strip search.” Id. at 1447. The next year, however, we held unconstitutional the City of Los Angeles’s blanket strip search policy which subjected all felony arrestees to a visual body cavity search. Kennedy v. Los Angeles Police Dept., 901 F.2d 702, 714 (9th Cir.1990), abrogated on other grounds by Hunter v. Bryant, 502 U.S. 224, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam). In Kennedy, we emphasized that while a charge of a violent offense, such as the charge in Thompson, may justify a strip search, the mere fact of a felony charge bears no reasonable relationship to institutional security concerns. Id. at 713 (“[T]he enacted policy, if it is to be constitutional, must be ‘reasonably related’ to the penal institution’s interest in maintaining security.”). In short, under controlling circuit precedent, a blanket strip search of pre-arraignment arrestees, no matter how minor the offense and in absence of reasonable suspicion, violates the Constitution. Defendants argue that San Francisco’s policy is constitutional under Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), in which the Supreme Court addressed a strip search policy applied to prisoners and pre-trial detainees. However, Bell pre-dated the pre-arraignment cases in our circuit, which carefully considered and distinguished Bell. In Bell the Supreme Court held that strip and visual body cavity searches may, in certain instances, be conducted on prisoners and pretrial detainees in institutional settings" } ]

[ { "docid": "4775765", "title": "", "text": "S.Ct. 3263, 97 L.Ed.2d 762 (1987); Jones v. Edwards, 770 F.2d 739 (8th Cir.1985); Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); Hill v. Bogans, 735 F.2d 391 (10th Cir.1984); Marybeth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982); O’Brien v. Borough of Woodbury Heights, 679 F.Supp. 429 (D.N.J.1988); Davis v. City of Camden, 657 F.Supp. 396 (D.N.J.1987); see also State v. Sheppard, 196 N.J.Super. 448, 483 A.2d 235 (N.J.Super.L.1984). As Judge Brotman of this district has noted, reasonable suspicion is a standard which requires a particularized and objective basis for suspecting the particular person of secreting weapons or contraband. O’Brien, 679 F.Supp. at 433, quoting United States v. Montoya de Hernandez, 473 U.S. 531, 541-542, 105 S.Ct. 3304, 3311, 87 L.Ed.2d 381 (1985). Factors which may lead authorities to reasonably suspect that an arrestee may be concealing such items include the crime with which she is charged, her particular characteristics, and the circumstances of her arrest. Weber, 804 F.2d at 802. This court considers the Borough’s policy of watching arrestees use bathroom facilities no less destructive of arrestees’ rights than the visual strip searches at issue in the cases cited above. Cf. Capua v. City of Plainfield, 643 F.Supp. at 1514. (“The requirement of surveillance during urine collection forces those tested to expose parts of their anatomy to the testing official in a manner akin to strip search exposure”). The very imperatives of human physiology dictate that arrestees detained in Clayton for any significant period of time will have at least those areas of their genitalia necessary for defecation and/or urination exposed to the police. Without a standard at least as stringent as that which applies to strip searches, the protections Davis and O’Brien grant arrestees in New Jersey will be ineffectual. In" }, { "docid": "23208305", "title": "", "text": "us because she was arrested for possession of a controlled substance. Other circuits have similarly found policies like the one before us unconstitutional. See Masters v. Crouch, 872 F.2d 1248, 1253-54 (6th Cir.1989) (“Bell v. Wolfish does not validate a blanket policy of strip searching pretrial detainees. Bell v. Wolfish authorizes particularized searches where objective circumstances indicate such searches are needed to maintain institutional security.”), cert. denied, 493 U.S. 977, 110 S.Ct. 503, 107 L.Ed.2d 506 (1989); Jones v. Edwards, 770 F.2d 739, 740, 742 (8th Cir.1985) (holding unconstitutional the strip search of a detainee arrested for allowing his dog to run wild and stating that “security cannot justify the blanket deprivation of rights of the kind incurred here”); Stewart v. Lubbock County, 767 F.2d 153, 156 (5th Cir.1985) (holding unconstitutional under Bell’s balancing test a strip search policy applied to minor offenders “when no reasonable suspicion existed that they as a category of offenders or individually might possess weapons or contraband”), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Hill v.Bogans, 735 F.2d 391, 394 (10th Cir.1984) (holding that intermingling with prison population absent any circumstances or prior offenses suggesting the possibility of concealing weapons or contraband was insufficient to warrant a strip search); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir.1981) (“An indiscriminate strip search policy routinely applied to detainees such as Logan along with all other detainees cannot be constitutionally justified simply on the basis of administrative ease in attending to security considerations.”), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). The majority cites with approval the recent Eleventh Circuit case Powell v. Barrett, 541 F.3d 1298 (11th Cir.2008) (en banc). Powell is alone among the circuits. Id. at 1315-16 (Barkett, J., dissenting) (“For almost thirty years, circuit courts have followed the Bell Court’s instructions and, until today, universally held that reasonable suspicion is necessary to constitutionally justify the types of searches before us.”). Powell is also inapposite because the policy in that case mandated searches far less intrusive than the ones here. Under the policy in Powell," }, { "docid": "23147226", "title": "", "text": "v. Edwards, 770 F.2d 739, 740-42 (8th Cir.1985) (strip/body cavity search of arrestee who refused to sign summons and allegedly resisted arrest unconstitutional); Stewart v. Lubbock County, 767 F.2d 153, 155-57 (5th Cir.1985) (reasonable suspicion standard did not justify strip searches of persons arrested for misdemeanors punishable only by fine), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Giles, 746 F.2d at 617 (authorities must have reasonable individualized suspicion of concealment of contraband to strip search arrestees of traffic or of other minor violations); Hill, 735 F.2d at 393-95 (strip search of traffic offender unconstitutional where no reasonable suspicion that offender might have been concealing contraband); Mary Beth G., 723 F.2d at 1263 (policy calling for strip/body cavity searches of women arrested for misdemeanor offenses unconstitutional); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir.1981) (strip search of DWI arrestee unconstitutional), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). Courts invalidating strip search policies as applied to traffic and other non-violent offenders have generally held that in order to strip search such arrestees, the arresting officers must have reasonable individualized suspicion that an arrestee is carrying or concealing contraband. See e.g., Giles, 746 F.2d at 617; Weber, 804 F.2d at 802; Mary Beth G., 723 F.2d at 1273. Individualized suspicion sufficient to warrant a strip search of such detainees may be based on such factors as “the nature of the offense, the arrestee’s appearance and conduct, and the prior arrest record.” Giles, 746 F.2d at 617; see also Weber, 804 F.2d at 802. The Sixth Circuit has, in contrast, upheld the strip search of an arrestee charged with the misdemeanor offense of menacing, Dobrowolskyj v. Jefferson County, 823 F.2d 955, 957-59 (6th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1012, 98 L.Ed.2d 978 (1988), and felonious assault, Dufrin v. Spreen, 712 F.2d 1084, 1089 (6th Cir.1983), based primarily on the fact that the charged offenses were sufficiently associated with violence and contraband and that the arrestees would be intermingled with the general jail population. See also Masters v. Crouch, 872 F.2d" }, { "docid": "11773352", "title": "", "text": "been arrested for an offense more serious than those attributed to the plaintiffs in this case. Covino, 967 F.2d at 75 n. 1. The Second Circuit did not base its decision on this distinction, however, nor did it limit its holding to blanket strip searches of \"major” offenders. . Indeed, the Bell Court suggested that the lack of a history of discovered contraband on inmates’ bodies might attest to the effectiveness of this search modality as a deterrent. Bell, 441 U.S. at 559, 99 S.Ct. 1861. . We note at the outset that the reasonable suspicion standard is not particularly demanding. Reasonable suspicion is \"something stronger than a mere hunch, but something weaker than probable cause.” Wood v. Clemons, 89 F.3d 922, 929 (1st Cir.1996) (citation and quotation marks omitted). It is a standard that can be satisfied by a wide range of circumstances, including \"the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest.’’ Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986); see also Roberts v. Rhode Island, 239 F.3d 107, 113 (1st Cir.2001) (Roberts II) (stating that reasonable suspicion can be based on \"observations of a particular inmate during a less invasive pat-down frisk and clothing search, or based on contraband found during that search”). . See Justice v. City of Peachtree City, 961 F.2d 188, 193 (11th Cir.1992); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir. 1989), cert. denied, 493 U.S. 977, 110 S.Ct. 503, 107 L.Ed.2d 506 (1989); Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Jones v. Edwards, 770 F.2d 739, 742 (8th Cir. 1985); Stewart v. Lubbock County, Tex., 767 F.2d 153, 156-57 (5th Cir.), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Giles v. Ackerman, 746 F.2d 614, 618 (9th Cir. 1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir. 1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983);" }, { "docid": "4775764", "title": "", "text": "Ms. Wilkes’ and other arres-tees’ privacy interests, we are guided by numerous decisions assessing the constitutionality of blanket strip search policies as applied to arrestees. These decisions are particularly relevant since they deal with the validity of visual strip searches not involving physical contact with the arres-tee, conducted pursuant to policies calling for strip searches of all defendants regardless of the offense with which they were charged. In evaluating the validity of these policies, the courts have followed the approach advocated in Bell v. Wolfish and have weighed the government’s interest in keeping its detention facilities free from weapons and contraband against the degradation the strip searches imposed on arres-tees. After balancing these concerns, seven of the Circuit Courts of Appeal and two courts in this judicial district have held that authorities must have a “reasonable suspicion” that an arrestee is harboring contraband or weapons before a visual strip search will be constitutionally permissible. Weber v. Dell, 804 F.2d 796 (2d Cir.1986), cert. denied, sub nom. County of Monroe v. Weber, — U.S. -, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Jones v. Edwards, 770 F.2d 739 (8th Cir.1985); Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); Hill v. Bogans, 735 F.2d 391 (10th Cir.1984); Marybeth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982); O’Brien v. Borough of Woodbury Heights, 679 F.Supp. 429 (D.N.J.1988); Davis v. City of Camden, 657 F.Supp. 396 (D.N.J.1987); see also State v. Sheppard, 196 N.J.Super. 448, 483 A.2d 235 (N.J.Super.L.1984). As Judge Brotman of this district has noted, reasonable suspicion is a standard which requires a particularized and objective basis for suspecting the particular person of secreting weapons or contraband. O’Brien, 679 F.Supp. at 433, quoting United States v. Montoya de Hernandez, 473 U.S. 531, 541-542, 105 S.Ct. 3304," }, { "docid": "4255791", "title": "", "text": "the detainees had previously been convicted of serious crimes. Bell, 441 U.S. at 524, 99 S.Ct. at 1866. Here, Ernst was arrested for what is admittedly one of most petty traffic violations extant within the State of New Jersey—driving with a suspended registration. The arresting officers have at no time indicated that they suspected that Ernst was armed or dangerous, nor have they indicated that they believed Ernst was concealing drugs or contraband. In short, as in Davis and O’Brien, there is simply nothing in the record to indicate that there was any reason at all—other than the wholly inadequate reason that he could not post bail—to subject Ernst to the “humiliation and degradation” of a strip search. See O’Brien, 679 F.Supp. at 434. The courts of this district have not stood alone in invalidating strip searches which are undertaken without reasonable suspicion to believe that an arrestee is concealing a weapon or drugs or harboring contraband. Indeed, as both Judges Cohen and Brotman noted in their consideration of this issue, no less than seven United States Courts of Appeals have invalidated such searches under similar circumstances. See Weber v. Dell, 804 F.2d 796 (2nd Cir.1986), cert. denied sub nom. County of Monroe v. Weber, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Jones v. Edwards, 770 F.2d 739 (8th Cir.1985); Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); Hill v. Bogans, 735 F.2d 391 (10th Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). In each of these cases, the task was, as it naa to oe, to oatance tne governmental interest in maintaining safe detention facilities against the rights of the arrestee to be free from what is, by all accounts, a degrading and unpleasant experience. The “reasonable" }, { "docid": "16589108", "title": "", "text": "(\"No other amendments to the pleadings shall be made.”). . In Ernst v. Borough of Fort Lee, 739 F.Supp. 220, 224 (D.N.J.1990), Judge Barry made the following observation: \"The courts of this district have not stood alone in invalidating strip searches which are undertaken without reasonable suspicion to believe that an arrestee is concealing a weapon or drugs or harboring contraband. Indeed, as both Judges Cohen and Brotman noted in their consideration of this issue, no less than seven United States Courts of Appeals have invalidated such searches under similar circumstances. See Weber v. Dell, 804 F.2d 796, (2d Cir.1986), cert. denied sub no-mine County of Monroe v. Weber, 483 U.S. 1020 [107 S.Ct. 3263, 97 L.Ed.2d 762] (1987); Jones v. Edwards, 770 F.2d 739 (8th Cir.1985); Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir.1985), cert. denied, 475 U.S. 1066 [106 S.Ct. 1378, 89 L.Ed.2d 604] (1986); Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984), cert. denied, 471 U.S. 1053 [105 S.Ct. 2114, 85 L.Ed.2d 479] (1985); Hill v. Bogans, 735 F.2d 391 (10th Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied, 455 U.S. 942 [102 S.Ct. 1435, 71 L.Ed.2d 653] (1982).” Visual observation of urination by police is treated like a strip search. Wilkes at 149. . Kane asserts the following: the high speed chase at 4:30 a.m., the obvious attempt by Littles to escape, the need for the blockade, the surreptitious behavior by plaintiff in her sudden emergence from the floor of the car as well as plaintiff’s repeated insistence to use the bathroom, the failure of Lit-tles’ and DiLoreto to produce registration and insurance for the vehicle, Mr. Littles’ intoxication and the odor of alcohol on plaintiffs breath and the fact that the ownership of the vehicle remained in doubt even during plaintiff’s use of the bathroom, led to the reasonableness of defendant Kane’s suspicion that plaintiff was bent on discarding evidence. Defendant Kane’s Brief at 6. . See Comment, Pretext Searches and the Fourth Amendment: Unconstitutional Abuses of Power," }, { "docid": "14042217", "title": "", "text": "this District have since held the same. See, e.g., DiLoreto v. Borough of Oaklyn, 744 F.Supp. 610, 622 (D.N.J.1990) (holding that a visual strip search and subsequent viewing of plaintiff urinating was not reasonable “on the basis of mere suspicion that a car in which the detainee was a passenger was stolen.”); Ernst v. Borough of Fort Lee, 739 F.Supp. 220, 225 (D.N.J.1990) (“The mere fact that an arrestee will be incarcerated ... does not render a strip search reasonable. Stated somewhat differently, arrest itself, standing alone, is simply not enough.”); O’Brien v. Borough of Woodbury Heights, 679 F.Supp. 429, 434 (D.N.J. 1988) (holding that strip/body cavity searches of plaintiffs arrested for petty disorderly offenses were unconstitutional and “senseless”); cf. Wilkes v. Borough of Clayton, 696 F.Supp. 144, 149 (D.N.J.1988) (holding borough’s blanket policy of visual observation of arrestees using bathroom facilities “no less destructive of arrestees’ rights than the visual strip searches” previously held unconstitutional). With respect to the Circuit Courts of Appeal, eight circuits presently agree that reasonable suspicion must be present before a strip search is conducted in this context. See Bull v. City and County of San Francisco, 539 F.3d 1193 (9th Cir.2008); Roberts v. Rhode Island, 239 F.3d 107 (1st Cir.2001); Weber v. Dell, 804 F.2d 796 (2d Cir.1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir.1989), cert. denied, 493 U.S. 977, 110 S.Ct. 503, 107 L.Ed.2d 506 (1989); Jones v. Edwards, 770 F.2d 739 (8th Cir.1985); Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Hill v. Bogans, 735 F.2d 391 (10th Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). This consensus is buttressed by valid concerns for privacy, dignity, and the preservation of self-worth. See, e.g., Roberts, 239 F.3d at 110 (considering strip searches an “extreme intrusion” on personal privacy and “an" }, { "docid": "11773353", "title": "", "text": "Island, 239 F.3d 107, 113 (1st Cir.2001) (Roberts II) (stating that reasonable suspicion can be based on \"observations of a particular inmate during a less invasive pat-down frisk and clothing search, or based on contraband found during that search”). . See Justice v. City of Peachtree City, 961 F.2d 188, 193 (11th Cir.1992); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir. 1989), cert. denied, 493 U.S. 977, 110 S.Ct. 503, 107 L.Ed.2d 506 (1989); Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Jones v. Edwards, 770 F.2d 739, 742 (8th Cir. 1985); Stewart v. Lubbock County, Tex., 767 F.2d 153, 156-57 (5th Cir.), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Giles v. Ackerman, 746 F.2d 614, 618 (9th Cir. 1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir. 1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). . See Chapman v. Nichols, 989 F.2d 393, 398 (10th Cir. 1993) (holding that it was clearly established that a strip search policy applied to minor offense detainees without particularized reasonable suspicion was unlawful); Masters, 872 F.2d at 1255 (\"The decisions of all the federal courts of appeals that have considered the issue reached the same conclusion: a strip search of a person arrested for a traffic violation or other minor offense not normally associated with violence and concerning whom there is no individualized reasonable suspicion that the arrestee is carrying or concealing a weapon or other contraband, is unreasonable. We believe the right of such a person to be free of such a search was clearly established’ on October 21, 1986.”); Weber, 804 F.2d at 803 (denying qualified immunity for defendants who performed suspicionless strip searches on arres-tees because \"at least eleven circuit court decisions ... hold similar policies unconstitutional”); Jones, 770" }, { "docid": "5506514", "title": "", "text": "849 F.2d 195, 199 (5th Cir.1988); Walsh v. Franco, 849 F.2d 66, 68 (2d Cir.1988); Weber v. Dell, 804 F.2d 796, 801 (2d Cir.1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Ward v. County of San Diego, 791 F.2d 1329, 1332 (9th Cir.1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Jones v. Edwards, 770 F.2d 739, 742 (8th Cir.1985); Stewart v. Lubbock County, 767 F.2d 153, 156-57 (5th Cir.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir.1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). There can be no doubt that a strip search is an invasion of personal rights of the first magnitude. It is axiomatic that a strip search represents a serious intrusion upon personal rights. In [Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983)], the court referred to strip searches as “demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission.” Mary Beth G., 723 F.2d at 1272. Another court described the indignity individuals arrested for minor offenses experience in the following manner: The experience of disrobing and exposing one’s self for visual inspection by a stranger clothed with the uniform and authority of the state, in an enclosed room inside a jail, can only be seen as thoroughly degrading and frightening. Moreover, the imposition of such a search upon an individual detained for a lesser offense is quite likely to take that person by surprise, thereby exacerbating the terrifying quality of the event. John Does 1-100 v. Boyd, 613 F.Supp. 1514, 1522 (D.C.Minn.1985). Justice v. City of Peachtree City, 961 F.2d 188, 192 (11th Cir.1992); see also Boren v. Deland, 958 F.2d 987, 988 n. 1 (10th Cir.1992) .(“[A] strip" }, { "docid": "15236753", "title": "", "text": "of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. Id. at 559, 99 S.Ct. at 1884. (citations omitted). In the wake of Wolfish, eight of the Circuit Courts of Appeals have held that there must be a “reasonable suspicion” that an arrestee is concealing weapons or contraband in order for a strip search to be constitutionally justified. See Weber v. Dell, 804 F.2d 796 (2nd Cir.1986); Jones v. Edwards, 770 F.2d 739 (8th Cir.1985); Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); Hill v. Bogans, 735 F.2d 391 (10th Cir.1984); Marybeth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982); cf. Dufrin v. Spreen, 712 F.2d 1084 (6th Cir.1983). Many of the cases that have addressed the constitutionality of a particular strip search have involved plaintiffs who were strip searched pursuant to a blanket strip search policy similar to the one maintained at the Camden County Jail at the time plaintiff was placed in custody. Not surprisingly, courts examining strip searches, pursuant to a blanket policy, of persons arrested for minor offenses, generally have found no reasonable suspicion to constitutionally justify the search; conversely, courts examining strip searches, again pursuant to a blanket policy, of persons arrested on serious charges or charges involving weapons or contraband, have found the searches to have been constitutionally permissible. Compare Logan, supra; Tinetti v. Wittke, 479 F.Supp. 486 (E.D.Wis.1979), aff'd, 620 F.2d 160 (7th Cir. 1980) with Dufrin, supra; Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423 (10th Cir. 1984), vacated on other grounds, — U.S. -, 106 S.Ct. 40, 88 L.Ed.2d 88 (1985). As a number of courts have noted, reasonable suspicion that a particular arrestee is concealing weapons or" }, { "docid": "14847216", "title": "", "text": "Parker ET# 4454 660 State Route # 11 Hunlock Creek, PA 18621 5. Donald Stewart GA-7744, SCI Graterford, PA 19426 . The 2,326 other claims forms are currently marked as ineligible because the individuals who submitted them do not appear in the City's records. . See Roberts v. Rhode Island, 239 F.3d 107 (1st Cir.2001); Weber v. Dell, 804 F.2d 796 (2d Cir.1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir.1989), cert. denied, 493 U.S. 977, 110 S.Ct. 503, 107 L.Ed.2d 506 (1989); Jones v. Edwards, 770 F.2d 739 (8th Cir.1985); Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Hill v. Bogans, 735 F.2d 391 (10th Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). . See, e.g., Weber, 804 F.2d at 802; Masters, 872 F.2d at 1255; Mary Beth G., 723 F.2d at 1272. . See Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir.1989); Kennedy v. Los Angeles Police Dept., 901 F.2d 702, 711 (9th Cir.1989), Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir.1999) (en banc). . At least one other district court has created subclasses along similar lines. See Ford v. City of Boston, 154 F.Supp.2d 131, 135 (D.Ma.2001). . See, e.g., Miracle v. Bullitt County, Ky., 2008 WL 3850477 (W.D.Ky. Aug. 15, 2008); Florence v. Bd. of Chosen Freeholders of County of Burlington, 2008 WL 800970, *6 (D.N.J. March 20, 2008); Johnson v. District of Columbia, 248 F.R.D. 46, 50 (D.D.C.2008); Bull v. City and County of San Francisco, 539 F.3d 1193, 1195 (9th Cir.2008); Sutton v. Hopkins County, 2007 WL 119892, *1 (W.D.Ky. Jan. 11, 2007); Tardiff v. Knox County, 218 F.R.D. 332, 336 (D.Me.2003); Nilsen v. York County, 219 F.R.D. 19, 25 (D.Me.2003); McBean v. City" }, { "docid": "5506513", "title": "", "text": "it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. Id. at 559, 99 S.Ct. at 1884 (emphasis added). In this case, it is undisputed that plaintiffs were arrested for minor traffic violations and were awaiting bail, that jail officials had no reasonable suspicion that these particular arrestees were likely to be carrying or concealing weapons or drugs, and that plaintiffs were searched solely because the blanket policy required all detainees to be subjected to a strip search. Every circuit court, including our own, which has considered the above circumstances under the Wolfish balancing test has concluded that a search under these circumstances is unconstitutional. See e.g., Masters v. Crouch, 872 F.2d 1248, 1253 (6th Cir.), cert. denied, 493 U.S. 977, 110 S.Ct. 503, 107 L.Ed.2d 506 (1989); Watt v. City of Richardson Police Dep’t, 849 F.2d 195, 199 (5th Cir.1988); Walsh v. Franco, 849 F.2d 66, 68 (2d Cir.1988); Weber v. Dell, 804 F.2d 796, 801 (2d Cir.1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Ward v. County of San Diego, 791 F.2d 1329, 1332 (9th Cir.1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Jones v. Edwards, 770 F.2d 739, 742 (8th Cir.1985); Stewart v. Lubbock County, 767 F.2d 153, 156-57 (5th Cir.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir.1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). There can be no doubt that a strip search is an invasion of personal rights of the first magnitude. It" }, { "docid": "14042216", "title": "", "text": "strip search to be constitutionally justified.” Id. at 399. Judge Cohen specifically cited the reasoning of the Second Circuit, recognizing that: reasonable suspicion that a particular arrestee is concealing weapons or contraband can arise, not only from the specific circumstances relating to the ar-restee or the arrest, but also from the nature of the charged offense. Id. at 400 (citing Weber v. Dell, 804 F.2d 796, 800 (2d Cir.1986)). Thus, the Court reasoned that a policy that mandates strip searches for all individuals charged with felonies or drug-related/weapons-related misdemeanor offenses may be upheld because such policy contains an implicit recognition of reasonable suspicion, albeit a general one. See Davis, 657 F.Supp. at 400-401. The policy at issue in Davis, however, did not so limit the search to drug-related or weapons-related offenses. Rather, it mandated strip searches for “[a]ll newly admitted inmates ...” Dams, supra, at 398 n. 2 (citing N.J. Admin. Code 10A:31-3.12(2) (1979)). Because the policy did not incorporate the reasonable suspicion requirement, it was ruled unconstitutional. Id. at 401. Several other Courts in this District have since held the same. See, e.g., DiLoreto v. Borough of Oaklyn, 744 F.Supp. 610, 622 (D.N.J.1990) (holding that a visual strip search and subsequent viewing of plaintiff urinating was not reasonable “on the basis of mere suspicion that a car in which the detainee was a passenger was stolen.”); Ernst v. Borough of Fort Lee, 739 F.Supp. 220, 225 (D.N.J.1990) (“The mere fact that an arrestee will be incarcerated ... does not render a strip search reasonable. Stated somewhat differently, arrest itself, standing alone, is simply not enough.”); O’Brien v. Borough of Woodbury Heights, 679 F.Supp. 429, 434 (D.N.J. 1988) (holding that strip/body cavity searches of plaintiffs arrested for petty disorderly offenses were unconstitutional and “senseless”); cf. Wilkes v. Borough of Clayton, 696 F.Supp. 144, 149 (D.N.J.1988) (holding borough’s blanket policy of visual observation of arrestees using bathroom facilities “no less destructive of arrestees’ rights than the visual strip searches” previously held unconstitutional). With respect to the Circuit Courts of Appeal, eight circuits presently agree that reasonable suspicion must be present before" }, { "docid": "14847215", "title": "", "text": "petition for attorneys’ fees and expenses is granted. Class Counsel is awarded fees of $1,770,000.00 and costs of $70,094.24 4. RSM McGladrey is awarded an additional $100,000 for administering the Settlement. 5. This Action and all claims against the settling Defendant are hereby dismissed with prejudice, but the Court shall retain exclusive and continuing jurisdiction of the Action, all Parties, and Settlement Class Members, to interpret and enforce the terms, conditions and obligations of this Settlement Agreement. 6. All Class Members who have not timely filed an opt-out request are barred and enjoined from commencing and/or prosecuting any claim or action against the Defendant. Any Class Member who has not timely filed a request to exclude themselves shall be enjoined from initiating and/or proceeding as a class action in any forum. IT IS SO ORDERED. EXHIBIT A Class Members Who Have Requested Exclusion From This Settlement 1. Reverend Daceia C. Frazier P.O. Box 48145 Philadelphia, PA 19144 2. Marvin Johnson PP# 62152 No Address 3. Glenn Galie 551 King Road Royersford, PA 19468 4. Mark Parker ET# 4454 660 State Route # 11 Hunlock Creek, PA 18621 5. Donald Stewart GA-7744, SCI Graterford, PA 19426 . The 2,326 other claims forms are currently marked as ineligible because the individuals who submitted them do not appear in the City's records. . See Roberts v. Rhode Island, 239 F.3d 107 (1st Cir.2001); Weber v. Dell, 804 F.2d 796 (2d Cir.1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir.1989), cert. denied, 493 U.S. 977, 110 S.Ct. 503, 107 L.Ed.2d 506 (1989); Jones v. Edwards, 770 F.2d 739 (8th Cir.1985); Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Hill v. Bogans, 735 F.2d 391 (10th Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). . See, e.g., Weber, 804 F.2d at 802; Masters," }, { "docid": "23147225", "title": "", "text": "privacy interest at stake in a strip search, especially one including visual inspection of body cavities, cannot be understated. The feelings of humiliation and degradation associated with forcibly exposing one’s nude body to strangers for visual inspection is beyond dispute. See Giles, 746 F.2d at 617 (parties do not dispute that strip search invaded plaintiff’s privacy “in a frightening and humiliating manner”); Tinetti v. Wittke, 479 F.Supp. 486, 491 (E.D.Wis.1979) (strip searches involving visual inspection of anal and genital areas “demeaning, dehumanizing, undignified, humiliating”), aff'd, 620 F.2d 160 (7th Cir.1980) (per curiam). In weighing these competing governmental and private interests, this court and several other courts have invalidated blanket visual strip search policies as applied to arrestees detained for minor traffic offenses and other misdemeanors not normally associated with weapons or other contraband. See Weber, 804 F.2d at 802 (“Fourth Amendment precludes prison officials from performing strip/body cavity searches of arrestees charged with misdemeanors or other minor offenses unless the officials have a reasonable suspicion that the arres-tee is concealing weapons or other contraband”); Jones v. Edwards, 770 F.2d 739, 740-42 (8th Cir.1985) (strip/body cavity search of arrestee who refused to sign summons and allegedly resisted arrest unconstitutional); Stewart v. Lubbock County, 767 F.2d 153, 155-57 (5th Cir.1985) (reasonable suspicion standard did not justify strip searches of persons arrested for misdemeanors punishable only by fine), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Giles, 746 F.2d at 617 (authorities must have reasonable individualized suspicion of concealment of contraband to strip search arrestees of traffic or of other minor violations); Hill, 735 F.2d at 393-95 (strip search of traffic offender unconstitutional where no reasonable suspicion that offender might have been concealing contraband); Mary Beth G., 723 F.2d at 1263 (policy calling for strip/body cavity searches of women arrested for misdemeanor offenses unconstitutional); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir.1981) (strip search of DWI arrestee unconstitutional), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). Courts invalidating strip search policies as applied to traffic and other non-violent offenders have generally held that in" }, { "docid": "4255792", "title": "", "text": "United States Courts of Appeals have invalidated such searches under similar circumstances. See Weber v. Dell, 804 F.2d 796 (2nd Cir.1986), cert. denied sub nom. County of Monroe v. Weber, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Jones v. Edwards, 770 F.2d 739 (8th Cir.1985); Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); Hill v. Bogans, 735 F.2d 391 (10th Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). In each of these cases, the task was, as it naa to oe, to oatance tne governmental interest in maintaining safe detention facilities against the rights of the arrestee to be free from what is, by all accounts, a degrading and unpleasant experience. The “reasonable suspicion” test—under which an arrestee may not be strip searched absent a reasonable suspicion that he or she is carrying a weapon or drugs or harboring contraband—fulfills this goal by properly balancing the arrestee’s right to be free from unreasonable intrusion against the legitimate interest of the police in maintaining a secure jail facility, an interest which is simply not compromised by the mere inability to post bail. What constitutes a “reasonable suspicion” must, of necessity, depend upon the individual circumstances of each case, and will obviously include an analysis of such factors as the nature of the offense which prompted the arrest, as well as the arrestee’s appearance and his or her prior criminal record. See, e.g., Giles, 746 F.2d at 617 (summarizing factors). Absent a reasonable suspicion to believe that the safety of a detention facility could be compromised, however, there is simply no need for conducting a strip search and, thus, utterly no justification for having done so here. Although defendants have generally ignored the large body of case law extant on" }, { "docid": "22270881", "title": "", "text": "her body cavities. . The court below also adverted, 630 F.Supp. at 258, to Whitley v. Albers, — U.S. —, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986), as a recent Supreme Court expression of the deference to be accorded prison administrators with respect to security matters. Indeed it is, but in a context (an alleged infringement of Eighth Amendment rights when a prisoner was shot during a prison riot) too remote to be of much assistance here. . See Jones v. Edwards, 770 F.2d 739 (8th Cir. 1985) (strip/body cavity search of arrestee who refused to sign summons and became belligerent toward arresting officers was unconstitutional); Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir.1985) (reasonable suspicion standard did not justify strip searches of persons arrested for misdemeanors punishable only by fine), cert. denied, — U.S. —, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Levka v. City of Chicago, 748 F.2d 421 (7th Cir.1984) (reviewing damage award for an unconstitutional strip/body cavity search); Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984) (arrestees for traffic law violations and other minor offenses may be strip-searched only if reasonable suspicion standard is satisfied), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); Hill v. Bogans, 735 F.2d 391 (10th Cir.1984) (strip search of traffic offender was unconstitutional where no circumstances indicated that the offender might have been concealing contraband and the offense was not associated with such concealment); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983) (policy calling for strip/body cavity searches of women arrested for misdemean- or offenses was unconstitutional); Tikalsky v. City of Chicago, 687 F.2d 175 (7th Cir.1982) (strip/body cavity search of woman arrested for disorderly conduct violated her Fourth Amendment rights); Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981) (strip search of DWI arrestee was unconstitutional), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982); Tinetti v. Wittke, 479 F.Supp. 486 (E.D.Wis.1979) (probable cause was necessary to justify strip searches for non-misdemeanor traffic offenses), aff’d, 620 F.2d 160 (7th Cir.1980) (per curiam); cf. Dufrin v. Spreen, 712" }, { "docid": "6405641", "title": "", "text": "Because this court finds itself in total agreement with the predominating caselaw in this area, which has found blanket strip/body cavity search policies such as the one in force at the Gloucester County Jail to be insupportable and unconstitutional, plaintiffs’ motion for summary judgment on this issue will be granted and defendants’ corresponding motion will be denied. 1. The Unconstitutionality Of The Searches In evaluating the permissibility of body cavity or strip searches of arrestees, seven of the United States Circuit Courts of Appeals have held that such searches must be based on a “reasonable suspicion” that an arrestee is concealing contraband or weapons. See Weber v. Bell, 804 F.2d 796 (2d Cir.1986), cert denied sub nom County of Monroe v. Weber, — U.S. -, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Jones v. Edwards, 770 F.2d 739 (8th Cir.1985); Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604; Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479; Hill v. Bogans, 735 F.2d 391 (10th Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). And while the Third Circuit has yet to address the question, in a recent opinion issuing from this district, the Honorable Mitchell H. Cohen declared unconstitutional a blanket policy of the Camden County Jail which subjected all arrestees to indiscriminate strip/body cavity searches. Davis v. City of Camden, 657 F.Supp. 396 (D.N.J.1987). Nonetheless, defendants contend, in the face of this overwhelming contrary authority, that the blanket strip/body cavity search policy of the Gloucester County Jail is a necessary and constitutional procedure. Defendants further argue that the case of Davis v. City of Camden was wrongly decided and is inconsistent with the Supreme Court’s holding in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1970). In Bell v. Wolfish, the Court upheld as constitutional a policy under" }, { "docid": "14042218", "title": "", "text": "a strip search is conducted in this context. See Bull v. City and County of San Francisco, 539 F.3d 1193 (9th Cir.2008); Roberts v. Rhode Island, 239 F.3d 107 (1st Cir.2001); Weber v. Dell, 804 F.2d 796 (2d Cir.1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir.1989), cert. denied, 493 U.S. 977, 110 S.Ct. 503, 107 L.Ed.2d 506 (1989); Jones v. Edwards, 770 F.2d 739 (8th Cir.1985); Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Hill v. Bogans, 735 F.2d 391 (10th Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). This consensus is buttressed by valid concerns for privacy, dignity, and the preservation of self-worth. See, e.g., Roberts, 239 F.3d at 110 (considering strip searches an “extreme intrusion” on personal privacy and “an offense to the dignity of the individual”) (citation omitted); Chapman v. Nichols, 989 F.2d 393, 396 (10th Cir.1993) (“It is axiomatic that a strip search represents a serious intrusion upon personal rights.”); Mary Beth G., 723 F.2d at 1272 (7th Cir.1983) (considering strip searches “demeaning, dehumanizing, undignified, embarrassing and repulsive”); see also, O’Brien, 679 F.Supp. at 434 (D.N.J.1988) (describing strip/body cavity searches of plaintiffs for disorderly offenses as “humiliat[ing] and degrading]”). In short, a clear consensus demonstrates that these searches are undignified and unconstitutional. Defendants disagree and contend that “[t]he weight of current authority nationwide as to the legality of blanket strip searches in prisons has turned overwhelmingly in favor of upholding such searches.” (Def.’s Burlington Reply Br. at 2.) In light of this “overwhelming” authority, Defendants contend that “Davis misinterpreted the Supreme Court’s ruling in Bell v. Wolfish, and this court should not adhere to its result.” (Id.) (internal citation omitted). Defendants are correct that a circuit split has developed, but it is an overstatement to say that “current authority” has “turned overwhelmingly”. ii" } ]

[ { "docid": "22284918", "title": "", "text": "administrative decision to deny social security benefits. If it is true that the physicians who reported on Johnson’s condition did not even see him, this alone would not be substantial evidence on which to base an administrative decision. Whether these physicians did see Johnson or had other adequate acceptable information before making their reports is another inquiry to pursue at the further hearing. Finally, Johnson has submitted additional evidence on appeal which he claims supports his position. This is a medical examination report by Johnson’s treating physician dated March 13, 1978, and a May 24, 1979, statement by that physician stating that Johnson’s condition limits his productive activity to four hours a day. Moreover, this physician does not expect Johnson’s condition to improve. It has been held that a physical limitation which prevents a claimant from working a full workday, minus a reasonable time for lunch and breaks, constitutes a disability within the meaning of the Act. Cornett v. Califano, 590 F.2d 91 (4th Cir. 1978). Cf. Prestigiacomo v. Celebrezze, 234 F.Supp. 999 (E.D.La. 1964); Austin v. Celebrezze, 230 F.Supp. 256 (S.D.Tex.1964) (irregular or sporadic work does not qualify as substantial gainful activity). Of course, this Court is limited to an examination of the evidence before ALJ and is not allowed to consider this new evidence in deciding if the administrative decision was correct. However, the existence of new evidence can create “good cause” for remand to the ALJ for additional findings. Mann v. Gardner, 380 F.2d 182, 187 (5th Cir. 1967); Story v. Richardson, 356 F.Supp. 1182, 1184 (E.D.Tenn.1972). For the foregoing reasons, we reverse the District Court’s summary judgment in favor of the SSA and remand the case with orders for the District Court in turn to remand to the SSA for further hearing in accordance with this opinion. REVERSED and REMANDED." } ]

[ { "docid": "16984433", "title": "", "text": "activity’ ”); Greene v. Weinberger, 391 F.Supp. 632, 637 (E.D.Pa.1975) (“the ability to work only part-time does not constitute the ability to perform substantial gainful employment within the terms of the Social Security Act”); McDowell v. Richardson, 439 F.2d 995, 997 (6th Cir.1971) (per curiam) (ability to work only intermittently in an eight-hour work day does not meet Secretary’s burden) These cases make clear that, for part-time work to constitute “substantial gainful activity,” it must be “substantial,” Burkhalter v. Schweiker, supra, 711 F.2d at 845 & n. 5 (ability to work five hours per day, five days per week), and not for just “a few hours a day.” Cornett v. Califano, supra 590 F.2d at 94; Kornock v. Harris, supra 648 F.2d at 527. CONCLUSION The unrefuted medical evidence before the Secretary indicates that plaintiff can stand and walk for only one hour during an eight-hour workday, and that he can sit for three hours if he elevates his left leg. He cannot lift or carry even five pounds. The Secretary’s determination that plaintiff is not disabled because he can perform “sedentary work” is, therefore, not supported by substantial evidence. Accordingly, plaintiff’s motion for judgment on the pleadings is granted insofar as it seeks a remand, defendant’s cross-motion is denied, and the case is remanded to the Secretary for proceedings consistent with this decision. The action is dismissed, subject to its being reopened by either party within a reasonable time following any further proceedings by the Secretary. It is.so ordered. . Margaret M. Heckler succeeded Richard S. Schweiker as Secretary of Health and Human Services on March 9, 1983, and has been substituted as defendant in this action, pursuant to Section 205(g) of the Act, and Rule 25(d)(1), Fed.R.Civ.P. . In concluding that the Secretary bears the burden of proof once a claimant has established a prima facie case, the Court does not reach the question of whether the Secretary bears the burden of demonstrating medical improvement in a benefits termination case in which the claimant has not established a prima facie case. This question was expressly left unresolved in" }, { "docid": "5760554", "title": "", "text": "credibility regarding pain). The ALJ’s argument that, sporadically through the record, there is evidence that Koseck did outside work with ladders, shovelled snow, or other activities, showing that Koseck’s pain was not so severe is not persuasive as, following Ko-seck’s attempts at these activities, there is evidence that he suffered from significant pain. (R. 279). Koseck’s treating physician, Dr. Depew, stated, in 1989, that Koseck could perform sedentary work from an “orthopaedic standpoint,” (R. 326), but did not speak to the issue of stamina, i.e., the capacity to work for sustainable periods, nor did he specifically opine as to Koseek’s work ability from a neurological viewpoint. As noted, in a later vocational evaluation, it was found that Ko-seck did not have the capacity to work for any sustainable period. Finally, Defendant argues that Koseck is able to perform part-time sedentary work, and, therefore, he is not disabled. In Mazzella v. Secretary of Health and Human Services, 588 F.Supp. 603 (S.D.N.Y.1984), which held that a plaintiff was not capable of sedentary work where medical evidence determined that the plaintiff could not sit for more than three hours in an eight hour workday, the court stated that it was “troubled by the Secretary’s conclusion that plaintiff was not ‘disabled’ because he could engage in part-time sedentary work.” Mazzella, supra, at 607. While citing the case asserted by Defendant in this case in support of its position that part-time work is substantial gainful activity, see Burkhalter v. Schweiker, 711 F.2d 841, 844-45 (8th Cir.1983), the Maz-zella court noted that other courts had held that the ability to work a few hours a day or to work only on an intermittent basis is not the ability to engage in substantial gainful activity. Mazzella, supra, at 607 (citing cases). As the court in Mazzella reminded, “ ‘substantial gainful activity’ means the performance of substantial services with reasonable regularity in some competitive employ-ment_ Complete helplessness is not necessary to a finding of an allowable disability.” Mazzella, supra, at 608 n. 4. In this case, in an earlier vocational rehabilitation study of Koseck, conducted by Elizabeth Bauer" }, { "docid": "22200586", "title": "", "text": "walk, stand or sit for over one hour without pain does not have the capacity to do most jobs available in the national economy.” Delgado v. Heckler, 722 F.2d 570, 574 (9th Cir.1983). The evidence introduced relative to Gallant’s ability to perform work-related activities indicates that although no psychiatric disability limits his ability to understand, carry out and remember instructions, restriction of his daily activities and ability to respond to customary work pressures is severe due to his persistent, severe and unremitting pain. The reports show that claimant is not a malingerer and is severely and genuinely disabled. The only reports which directly support a finding of Gallant’s ability to engage in light and sedentary levels of exertion were made by two staff physicians who never examined claimant, but who based their conclusions on a review of submitted medical evidence. “A report of a non-examining, non-treating physician should be discounted and is not substantial evidence when contradicted by all other evidence in the record.” Millner v. Schweiker, 725 F.2d 243, 245 (4th Cir.1984). The reports of the physicians who did examine claimant, which were submitted relative to Gallant’s work-related ability, are persuasive evidence of claimant’s disability due to pain and his inability to engage in any form of gainful activity. Although the AU is not bound by expert medical opinion on the issue of disability, he must give clear and convincing reasons for rejecting such an opinion where it is uncontradicted. Montijo v. Secretary of Health & Human Services, 729 F.2d 599, 601 (9th Cir.1984); Rhodes v. Schweiker, 660 F.2d 722, 723 (9th Cir.1981). While the AU mentioned these opinions, he did not set forth any specific reasons for rejecting their uncontroverted conclusions. Thus, because the reports of the non-examining physicians were contradicted by all other evidence in the record, the medical evidence relied on below to support the Secretary’s determination that Gallant can engage in light and sedentary forms of gainful employment does not constitute substantial evidence that claimant has the residual capacity to perform the levels of exertion required under the Secretary’s definition of “light and sedentary” work." }, { "docid": "23340251", "title": "", "text": "language set out in 20 C.F.R. § 404.1567(a) and in Ruling 83-10 as the guideposts for full-time sedentary work. . In the panel brief, the government argued that part-time work was relevant at Step Five of the sequential analysis (i.e., the step that is relevant in the instant case, see infra) and cited § 404.1572(a) (which it now acknowledges is applicable only at Step One, not at Step Five) for this proposition. The thrust of the government's prior argument was that an ability to work part-time may preclude a finding of disability. The government failed to cite the authorities upon which it now relies for the distinction between Step One and Step Five in this regard. The government’s panel brief was also misleading as follows. Instead of demonstrating that the ALJ never assumed that part-time employment could constitute substantial gainful employment at Step Five, the government responded to appellant's argument that the ALJ erred by relying on the ability to perform part-time work — by arguing that the ability to work part-time could preclude a finding of disability. . We note that this situation — the possibly different roles of part-time work at Step One and Step Five, the statement in § 404.1572(a) that part-time work can be substantial gainful activity, and the language of Johnson v. Harris-has engendered substantial confusion in the courts. See, e.g., Conn v. Secretary of Health & Human Services, 51 F.3d 607 (6th Cir.1995) (taking the position that “the claimant need not be found capable of full-time work to be found capable of working” at Step Five and citing § 404.1572(a) as support for this assertion); Wood v. Callahan, 977 F.Supp. 1447 (N.D.Fla.1997) (taking the position that § 404.1572(a) applies at Step Five, and disregarding the Johnson v. Harris holding as dicta). Cf. Wright v. Sullivan, 900 F.2d 675, 679-80 (3d Cir.1990) (blurring the distinction between Step One and Step Five and engaging in substantial criticism of Johnson v. Harris even though only Step One was at issue); Burkhalter v. Schweiker, 711 F.2d 841 (8th Cir.1983) (holding that actual performance of part-time work during the" }, { "docid": "17169380", "title": "", "text": "1059, 71 L.Ed.2d 137] (1982); Schweiker v. Gray Panthers, supra [453 U.S. 34] at 44 [101 S.Ct. 2633 at 2640, 69 L.Ed.2d 460]. In McCoy v. Schweiker, 683 F.2d 1138, 1144 (8th Cir.1982) (en banc), we quoted the language from Batterton and applied its standard in determining that the Medical Vocational Guidelines or “grid” were valid. The Secretary has given balanced and thorough consideration to what constitutes substantial gainful activity. The regulations (20 C.F.R. §§ 404.1572-404.1574) require several criteria to be considered: (1) earnings, (2) nature of the work, (3) how well the claimant performs the work, (4) whether the work is done under special conditions, (5) whether the claimant is self-employed, and (6) the amount of time spent working. We believe that the Secretary could reasonably conclude that all of these criteria are relevant in determining what constitutes substantial gainful activity. We cannot conclude that these criteria are arbitrary or capricious or that they exceed the Secretary’s statutory authority. Accordingly, we conclude that the regulations setting out these criteria (20 C.F.R. §§ 404.1572-404.1574) are valid. We recognize that one court of appeals has concluded that part-time work cannot constitute substantial gainful activity. The Fifth Circuit in Johnson v. Harris, 612 F.2d 993 (5th Cir.1980), held that “a physical limitation which prevents a claimant from working a full workday, minus a reasonable time for lunch and breaks, constitutes a disability within the meaning of the Act.” Id. at 998. The court therefore remanded the case to the Secretary because the claimant showed that his physical condition prevented him from working full-time. Id. Johnson did not give consideration to the regulations adopted by the Secretary. In light of the strong admonitions from the Supreme Court that we have seen above, we do not find Johnson instructive or persuasive. The record before us reveals that the ALJ applied the criteria of the regulations in determining that Burkhalter’s job cleaning doctors’ offices constitutes substantial gainful activity. The ALJ found that she earned more than $300.00 per month from that job, therefore her earnings created a presumption that she was engaged in substantial gainful" }, { "docid": "17169383", "title": "", "text": "education, work experience and her Residual Function Capacity, the Medical-Vocational Guidelines require that she be found not disabled. Because we find the ALJ’s first rationale for denying disability benefits to be correct, we need not examine his second rationale. . The Social Security Act, 42 U.S.C. § 423(d)(4) provides: The Secretary shall by regulations prescribe the criteria for determining when services performed or earnings derived from services demonstrate an individual’s ability to engage in substantial gainful activity. Notwithstanding the provisions of paragraph (2) [which defines the term “disability”], an individual whose services or earnings meet that criteria shall ... be found not to be disabled. (Emphasis added.) . In Milton v. Schweiker, 669 F.2d 554, 556 n. 2 (8th Cir.1982), Martin v. Harris, 666 F.2d 1153, 1155-56 (8th Cir.1981), and Beasley v. Caiifano, 608 F.2d 1162, 1166 (8th Cir.1979), this court recognized the existence of the regulation which states that part-time work can constitute substantial gainful activity, but did not decide whether that regulation is valid. And in Milton v. Schweiker, 669 F.2d at 556, we examined the $300.00 per month presumption but found it inapplicable because the ALJ in that case failed to question the claimant adequately concerning his job, failed to obtain the claimant’s employment records, and failed to determine specifically whether the claimant’s monthly earnings exceeded $300.00. Here, by contrast, the ALJ sufficiently questioned Burkhalter about her cleaning job, obtained her employment records, and specifically found that she earned more than $300.00 per month. Thus, assuming the validity of the $300.00 per month presumption, Milton demonstrates that the ALJ correctly applied the presumption in this case. . In Cornett v. Califano, 590 F.2d 91 (4th Cir. 1978), the Fourth Circuit held that the ability to work a few hours a day at home transcribing from a dictaphone did not demonstrate the ability to engage in substantial gainful activity. And in Kornock v. Harris, 648 F.2d 525 (9th Cir. 1980), the Ninth Circuit found that a claimant who suffered from severe bronchial asthma and allergies and who could not work without frequent interruptions, was not capable of engaging" }, { "docid": "20783128", "title": "", "text": "doctor that he suffered continuous disabling pain was credible. Nevertheless, he also found that “[t]he claimant’s continued operation of the self-employment industry, the income derived therefrom and the substantial services rendered by the claimant constitutes engaging in substantial activity.” Since the statutory definition of disability re^ quires “inability to engage in any substantial gainful activity,” 42 U.S.C. § 416(i)(l), the Administrative Law Judge found Tucker not disabled. The Appeals Council of the Social Security Administration denied Tucker’s appeal on March 24, 1980, making the Administrative Law Judge’s decision the final decision of the Secretary. The district court affirmed, holding that there was substantial evidence in the record to support the finding that Tucker was engaged in substantial gainful activity. We disagree, and hold not only that there was insufficient evidence to support the Secretary’s determination, but also that Tucker’s activities do not constitute substantial gainful activity. Two or three hours per month of sedentary paperwork is not substantial activity. This court has held that “a physical limitation which prevents a claimant from working a full day, minus a reasonable time for lunch and breaks, constitutes a disability within the meaning of the Act.” Johnson v. Harris, 612 F.2d 993, 998 (5th Cir. 1980). See also Cornett v. Califano, 590 F.2d 91, 94 (4th Cir. 1978) (“The ability to work only a few hours a day or to work only on an intermittent basis is not the ability to engage in ‘substantial gainful activity.’”) To determine whether or not work performed by a claimant constitutes substantial gainful activity, the Secretary’s regulations require an examination of whether “the time [spent] is comparable to time customarily spent by individuals without impairment in similar work activities as a regular means of livelihood....” 20 C.F.R. 404.1533 (1980). We are unaware of any “regular means of livelihood” requiring only two or three hours of sedentary activity per month. Although the same regulations also state that performance of “significant duties on a part-time basis [may] show an ability to engage in substantial gainful activity,” they do not state that such work itself constitutes substantial gainful activity. The" }, { "docid": "6544030", "title": "", "text": "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)(1)(A), (2)(A). The burden is on the claimant to demonstrate that he is no longer capable of performing his past relevant work. Wilkinson v. Schweiker, 640 F.2d 743, 744 (5th Cir.1981). If this burden is satisfied by the claimant, the burden shifts to the Secretary to show that the claimant is capable of engaging in some type of gainful activity. Ferguson v. Schweiker, 641 F.2d 243, 246 (5th Cir.1981). The role of a court reviewing a denial of Social Security benefits is limited to a determination of whether substantial evidence supports the Secretary’s decision. 42 U.S.C. § 405(g). Substantial evidence means such evidence that a reasonable mind would 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). In applying this test, a court is bound to consider the factual findings by the Secretary conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Plaintiff first asserts the Secretary’s finding that he is capable of light work is not supported by substantial evidence. According to the definition of light work, a claimant must be able to perform substantially all of the following activities: 1) lifting no more than 20 pounds with frequent lifting or carrying of objects weighing up to 10 pounds; 2) walking and standing for substantial periods of time; and/or 3) sitting for extended periods with some pushing and pulling of arm or leg controls. 20 C.F.R. § 404.1567(b). Contrary to plaintiffs assertions, a review of the testimony and records offered at the hearing indicates substantial support for the Secretary’s determination. Plaintiff testified at the hearing that he is capable of frequently lifting 20-30 pounds. Medical reports introduced at the hearing indicated that plaintiff possesses the ability to stand and sit approximately six hours out of an eight-hour work day. Moreover, the medical advisor testified that plaintiffs conditions would not prevent him from performing the walking required for light" }, { "docid": "16984432", "title": "", "text": "sedentary work. Although the Regulations provide that work “may be substantial even if it is done on a part time basis....” 20 C.F.R. § 404.1572(a), the cases raise considerable question as to how that regulation is to be applied. While at least one court holds that part-time work can be “substantial gainful activity” see Burkhalter v. Schweiker, 711 F.2d 841, 844-45 (8th Cir.1983); see also Arocho v. Secretary of HHS, 670 F.2d 374, 376 (1st Cir.1982), other courts have held that such activity means only full-time work on a regular basis. See Johnson v. Harris, 612 F.2d 993, 998 (5th Cir.1980) (“a physical limitation which prevents a claimant from working a full workday, minus a reasonable time for lunch and breaks, constitutes a disability within the meaning of the Act”); Kornock v. Harris, 648 F.2d 525, 527 (9th Cir.1980); Cornett v. Califano, 590 F.2d 91, 94 (4th Cir.1978) (“the ability to work only a few hours a day or to work only on an intermittent basis is not the ability to engage in ‘substantial gainful activity’ ”); Greene v. Weinberger, 391 F.Supp. 632, 637 (E.D.Pa.1975) (“the ability to work only part-time does not constitute the ability to perform substantial gainful employment within the terms of the Social Security Act”); McDowell v. Richardson, 439 F.2d 995, 997 (6th Cir.1971) (per curiam) (ability to work only intermittently in an eight-hour work day does not meet Secretary’s burden) These cases make clear that, for part-time work to constitute “substantial gainful activity,” it must be “substantial,” Burkhalter v. Schweiker, supra, 711 F.2d at 845 & n. 5 (ability to work five hours per day, five days per week), and not for just “a few hours a day.” Cornett v. Califano, supra 590 F.2d at 94; Kornock v. Harris, supra 648 F.2d at 527. CONCLUSION The unrefuted medical evidence before the Secretary indicates that plaintiff can stand and walk for only one hour during an eight-hour workday, and that he can sit for three hours if he elevates his left leg. He cannot lift or carry even five pounds. The Secretary’s determination that plaintiff is" }, { "docid": "16984431", "title": "", "text": "day, as the Secretary concluded, he would still be unable to satisfy the physical exertional requirements for sedentary work. Moreover, the uncontradicted determination of plaintiff’s treating physician, Dr. Taller, that plaintiff could sit no more than three hours in an eight-hour workday conflicts sharply with the conclusion of the Secretary that plaintiff could sit for five hours per day, and with her determination that plaintiff had the residual functional capacity for sedentary work. These conclusions were not refuted by any other medical evidence presented to the AU or submitted to the Appeals Council after the ALJ’s decision, and, thus, were binding upon the Secretary. Because of the Secretary’s failure to accept the unrefuted conclusions of plaintiff’s treating physicians and to heed the physical exertional requirements for sedentary work contained in the regulations and reinforced by case law, this Court cannot agree with the Secretary’s determination that plaintiff had the residual functional capacity for sedentary work. The Court is also troubled by the Secretary’s conclusion that plaintiff was not “disabled” because he could engage in part-time sedentary work. Although the Regulations provide that work “may be substantial even if it is done on a part time basis....” 20 C.F.R. § 404.1572(a), the cases raise considerable question as to how that regulation is to be applied. While at least one court holds that part-time work can be “substantial gainful activity” see Burkhalter v. Schweiker, 711 F.2d 841, 844-45 (8th Cir.1983); see also Arocho v. Secretary of HHS, 670 F.2d 374, 376 (1st Cir.1982), other courts have held that such activity means only full-time work on a regular basis. See Johnson v. Harris, 612 F.2d 993, 998 (5th Cir.1980) (“a physical limitation which prevents a claimant from working a full workday, minus a reasonable time for lunch and breaks, constitutes a disability within the meaning of the Act”); Kornock v. Harris, 648 F.2d 525, 527 (9th Cir.1980); Cornett v. Califano, 590 F.2d 91, 94 (4th Cir.1978) (“the ability to work only a few hours a day or to work only on an intermittent basis is not the ability to engage in ‘substantial gainful" }, { "docid": "17169382", "title": "", "text": "activity. 20 C.F.R. § 404.1574(b)(2). Consideration of the other criteria failed to rebut the presumption. There was no evidence that her back problems frequently interrupted her cleaning activities, or that she performed the job with special conditions. The amount of time she worked, five hours a day, five days a week, is substantial. We conclude there was substantial evidence to support the finding of the Secretary that claimant’s work cleaning offices involved the performance of significant duties, productive in nature, for pay, and constituted substantial gainful activity. We conclude that as there was substantial evidence to support the Secretary’s determination that Burkhalter was engaged in substantial gainful activity at the time her claim was considered, the Secretary correctly concluded that she was not disabled. We therefore affirm the denial of disability benefits. . The Honorable Garnett Thomas Eisele, United States District Judge for the Eastern District of Arkansas affirmed the final decision of the Secretary of Health and Human Services. . The ALJ also gave a second rationale for his decision: that considering Burkhalter’s age, education, work experience and her Residual Function Capacity, the Medical-Vocational Guidelines require that she be found not disabled. Because we find the ALJ’s first rationale for denying disability benefits to be correct, we need not examine his second rationale. . The Social Security Act, 42 U.S.C. § 423(d)(4) provides: The Secretary shall by regulations prescribe the criteria for determining when services performed or earnings derived from services demonstrate an individual’s ability to engage in substantial gainful activity. Notwithstanding the provisions of paragraph (2) [which defines the term “disability”], an individual whose services or earnings meet that criteria shall ... be found not to be disabled. (Emphasis added.) . In Milton v. Schweiker, 669 F.2d 554, 556 n. 2 (8th Cir.1982), Martin v. Harris, 666 F.2d 1153, 1155-56 (8th Cir.1981), and Beasley v. Caiifano, 608 F.2d 1162, 1166 (8th Cir.1979), this court recognized the existence of the regulation which states that part-time work can constitute substantial gainful activity, but did not decide whether that regulation is valid. And in Milton v. Schweiker, 669 F.2d at 556," }, { "docid": "17169375", "title": "", "text": "JOHN R. GIBSON, Circuit Judge. Viola Burkhalter was denied disability benefits and supplemental income because she had a part-time job. The sole issue for our decision is whether the part-time work that Burkhalter engaged in after applying for disability benefits constitutes substantial gainful activity. We conclude that it does, and therefore affirm the Secretary’s decision to deny benefits. Burkhalter applied for disability benefits and supplemental security income in May of 1977 alleging that in November of 1976 she became disabled as a result of back problems. The medical evidence of her physical impairments is not in dispute. She has a low grade degenerative disc disease, obesity and hypertension. Physical examinations revealed that she experiences some back pain and stiffness, but otherwise her mobility is good. She takes medication for her back pain and to control her high blood pressure. Several psychiatric examinations revealed that she suffers from a hypocondriacal neurosis with hysterical features. At a hearing before an Administrative Law Judge (ALJ), Burkhalter testified that she had worked three jobs since she applied for disability in May of 1977. In July of 1979 she began a full-time job as a sewing machine operator, but quit after a few weeks. Shortly thereafter she began another job as a nurse’s aide. This job lasted approximately four months, and although she was supposed to work full-time, she often worked only five hours a day. She quit this job in December of 1979 because it disturbed her to watch patients die and because she became sick with the flu. Burkhalter further testified that since early May, 1980 she had been working part-time cleaning doctors’ offices, and that she intended to continue the job. She said she normally works five hours a day (from 5:00 p.m. to 10:00 p.m.), five days a week, and makes $3.10 per hour. She described the job as involving dusting, vacuuming and emptying trash cans and complained that the vacuuming hurt her back. After considering the nature of her work activity and determining that she earned more than $300.00 per month, the ALJ found that Burkhalter’s part-time work cleaning doctors’" }, { "docid": "612823", "title": "", "text": "Kangas was not disabled because he could engage in substantial gainful activity. Although the medical advisor testified that Kangas was capable of performing work activity when he was not suffering an exacerbation, “sporadic or transitory activity does not disprove disability.” Smith v. Califano, 637 F.2d 968, 971-72 (3rd Cir.1981). Even if Kangas were able to obtain an unskilled, sedentary job, it is not reasonable to expect him to be able to retain any such job when he has an impairment with his lungs that requires frequent hospitalizations. “Substantial gainful activity means performance of substantial services with reasonable regularity_” Markham v. Califano, 601 F.2d 533 (10th Cir.1979). See also Chiappa v. Secretary of Dept. of Health, Ed., etc., 497 F.Supp. 356, 360 (S.D.N.Y.1980) (“The extent to which a disability may prevent regular work attendance is a relevant factor in determining whether a claimant is able to engage in substantial gainful activity.”); Flam v. Califano, 469 F.Supp. 793, 795 (E.D.N.Y.1979) (The ability to engage in substantial gainful activity contemplates that the plaintiff can “as a practical matter compete for, secure, and sustain employment.”); Barats v. Weinberger, 383 F.Supp. 276 (E.D.Pa. 1974) (claimants ability to do semi-sedentary work on some days, but not with any regularity, would not disqualify her from coverage under the Act). Because the decision of the AU and the Secretary failed to evaluate the effect of Kangas’ frequent hospitalizations on his ability to perform any work on a regular, continuing or sustained basis, a critical factor, we conclude that the Secretary’s finding that Kangas is able to engage in substantial gainful activity must be reconsidered. We therefore need not reach Kan-gas’ other contentions. III. Accordingly, we will vacate the order of the district court with a direction that the cause be remanded to the Secretary for further proceedings consistent with this opinion. . Additional evidence submitted to the district court indicated that Kangas was hospitalized a total of twelve times in a twenty-five-month period. In view of our disposition of this matter, we need not consider the materiality of the reference to the additional hospitalizations. . Compare Mitchell v." }, { "docid": "23340252", "title": "", "text": "finding of disability. . We note that this situation — the possibly different roles of part-time work at Step One and Step Five, the statement in § 404.1572(a) that part-time work can be substantial gainful activity, and the language of Johnson v. Harris-has engendered substantial confusion in the courts. See, e.g., Conn v. Secretary of Health & Human Services, 51 F.3d 607 (6th Cir.1995) (taking the position that “the claimant need not be found capable of full-time work to be found capable of working” at Step Five and citing § 404.1572(a) as support for this assertion); Wood v. Callahan, 977 F.Supp. 1447 (N.D.Fla.1997) (taking the position that § 404.1572(a) applies at Step Five, and disregarding the Johnson v. Harris holding as dicta). Cf. Wright v. Sullivan, 900 F.2d 675, 679-80 (3d Cir.1990) (blurring the distinction between Step One and Step Five and engaging in substantial criticism of Johnson v. Harris even though only Step One was at issue); Burkhalter v. Schweiker, 711 F.2d 841 (8th Cir.1983) (holding that actual performance of part-time work during the disability disqualified the claimant from receiving benefits (i.e., Step One) and criticizing Johnson v. Harris which it saw as inconsistent with this rule). We save for another day the question of the relevance of part-time work at Step Five, but encourage the Commissioner to make his regulations more clear and understandable in this regard. . No member of this panel nor any other judge in regular active service on the Court, having requested that the Court be polled on rehearing en banc (Rule 35, Fed.R.App.P.; Eleventh Circuit Rule 35-5), the petition for rehearing en banc is denied. The petition for panel rehearing is granted in part in that the prior opinion published at 173 F.3d 814 is vacated and the instant opinion is substituted." }, { "docid": "10476014", "title": "", "text": "available jobs to those employers who require just six-and-a-half hours of work for eight hours of pay and also never require a receptionist to work overtime. Finally, the RFC form completed by Dr. Heilman already took normal breaks into account in determining how many hours plaintiff could work. Tr. 292. By deviating from a normal eight-hour day to include breaks which had already been considered by plaintiffs physician, the ALJ effectively double-counted those breaks. On appeal, the Secretary contends that the error is inconsequential because plaintiff is not disabled if the Secretary finds she is capable of working part-time, citing Davis v. Secretary of HHS, 915 F.2d 186, 189 (6th Cir.1990). There is some logic to the Secretary’s argument. A claimant who is presently performing substantial gainful activity is presumptively not disabled. 20 C.F.R. § 404.1520. Part-time work that results in average earnings in excess of $500 per month will ordinarily constitute substantial gainful activity that precludes a finding of disability. 20 C.F.R. § 404.1574; Katz v. Secretary of HHS, 972 F.2d 290 (9th Cir.1992). Logically, the same standard ought to apply to a claimant’s ability to obtain future work, i.e. if the claimant is not presently engaging in substantial gainful activity, but has the potential to do so in the future, then she is not disabled. However, that is not the way the Secretary has historically interpreted the regulations. Rather, in assessing a claimant who is not presently engaged in substantial gainful activity, the Secretary has always asked whether the claimant is capable of working an eight-hour day. Thus Social Security Ruling 83-10 defines “sedentary”, “light”, and other forms of work in terms of the number of hours of sitting and standing that are required in an eight hour workday. Social Security Ruling 83-10, Unempl.Ins.Rep. (CCH) (New Matters) ¶ 14,-531. Similarly, RFC forms are primarily directed at determining whether the claimant is capable of working an eight hour day. The Ninth Circuit has always assumed that where a claimant is not presently engaged in substantial gainful activity, the burden is on the Secretary to demonstrate that the claimant is" }, { "docid": "17169381", "title": "", "text": "valid. We recognize that one court of appeals has concluded that part-time work cannot constitute substantial gainful activity. The Fifth Circuit in Johnson v. Harris, 612 F.2d 993 (5th Cir.1980), held that “a physical limitation which prevents a claimant from working a full workday, minus a reasonable time for lunch and breaks, constitutes a disability within the meaning of the Act.” Id. at 998. The court therefore remanded the case to the Secretary because the claimant showed that his physical condition prevented him from working full-time. Id. Johnson did not give consideration to the regulations adopted by the Secretary. In light of the strong admonitions from the Supreme Court that we have seen above, we do not find Johnson instructive or persuasive. The record before us reveals that the ALJ applied the criteria of the regulations in determining that Burkhalter’s job cleaning doctors’ offices constitutes substantial gainful activity. The ALJ found that she earned more than $300.00 per month from that job, therefore her earnings created a presumption that she was engaged in substantial gainful activity. 20 C.F.R. § 404.1574(b)(2). Consideration of the other criteria failed to rebut the presumption. There was no evidence that her back problems frequently interrupted her cleaning activities, or that she performed the job with special conditions. The amount of time she worked, five hours a day, five days a week, is substantial. We conclude there was substantial evidence to support the finding of the Secretary that claimant’s work cleaning offices involved the performance of significant duties, productive in nature, for pay, and constituted substantial gainful activity. We conclude that as there was substantial evidence to support the Secretary’s determination that Burkhalter was engaged in substantial gainful activity at the time her claim was considered, the Secretary correctly concluded that she was not disabled. We therefore affirm the denial of disability benefits. . The Honorable Garnett Thomas Eisele, United States District Judge for the Eastern District of Arkansas affirmed the final decision of the Secretary of Health and Human Services. . The ALJ also gave a second rationale for his decision: that considering Burkhalter’s age," }, { "docid": "17169376", "title": "", "text": "in May of 1977. In July of 1979 she began a full-time job as a sewing machine operator, but quit after a few weeks. Shortly thereafter she began another job as a nurse’s aide. This job lasted approximately four months, and although she was supposed to work full-time, she often worked only five hours a day. She quit this job in December of 1979 because it disturbed her to watch patients die and because she became sick with the flu. Burkhalter further testified that since early May, 1980 she had been working part-time cleaning doctors’ offices, and that she intended to continue the job. She said she normally works five hours a day (from 5:00 p.m. to 10:00 p.m.), five days a week, and makes $3.10 per hour. She described the job as involving dusting, vacuuming and emptying trash cans and complained that the vacuuming hurt her back. After considering the nature of her work activity and determining that she earned more than $300.00 per month, the ALJ found that Burkhalter’s part-time work cleaning doctors’ offices constituted substantial gainful activity, and therefore concluded she was not disabled. I. The Social Security regulations require ALJs to follow a sequential procedure in analyzing disability claims. As a first step the ALJ must determine whether the claimant is currently engaged in substantial gainful activity, and if he is, the claimant must be found not disabled regardless of his medical condition, age, education, or work experience. 20 C.F.R. § 404.1520(b) (1982). See also 42 U.S.C. § 423(d)(4). Pursuant to explicit Congressional directions the Social Security Administration promulgated regulations for determining what constitutes substantial gainful activity. Those regulations state that work may be substantial even if it is done on a part-time basis, or even if a claimant does less, earns less, or has less responsibility than when he worked before. Id. § 404.-1572(a). The regulations list several criteria that must be considered in deciding whether a particular job constitutes substantial gainful activity. The regulations emphasize that while time spent at work is an important criteria, it is not dispositive of what constitutes substantial gainful" }, { "docid": "23034045", "title": "", "text": "suspect a psychological deterrent is working here, as the patient seems to demonstrate almost a phobic reaction to the concept of returning to work and how this might result in physical harm.[ ] Jelinek later received a vocational evaluation from the Sister Kenny Institute which concluded that he is “employable only in very selective, part-time positions. This is in relation to his physical disability, limited transferable skills, length of time unemployed, area of residence, age, and his overall lack of physical endurance and tolerance for full-time work.” A later report by Dr. James Martins of the Sister Kenny Institute, on October 9, 1981, diagnosed Jeli-nek’s neuralgia as “post surgical nerve causalgia of the 5th through the 8th inter-costal nerves * * * with constant and tremendous irritation of these nerves with any motion on that side of the body. * * * [F]or all practical purposes a total impairment of his ability to work.” After reviewing the above evidence and the entire record, we conclude that there can be no doubt that Jelinek experiences pain. Moreover, every physician involved with his case has diagnosed neuralgia. Thus, Jelinek’s complaints of pain cannot be dismissed as incredible. The issue remains, however, whether Jelinek can perform any substantial gainful activity notwithstanding his pain. Here, we conclude that there is substantial evidence to support the Secretary’s decision that Jelinek’s pain does not prohibit him from engaging in light work. While Dr. Martins’ report would support a finding that Jelinek’s pain is disabling, the reports of Doctors Bergom and Anderson clearly support the Secretary’s view. Given this conflict in the evidence, it was permissible for the Secretary to find that Jelinek’s pain does not prohibit him from performing light work — notwithstanding other factors such as his work history and efforts to seek medical treatment for his pain. Once Jelinek’s capabilities were established, it remained for the Secretary to demonstrate that there are jobs available in the national economy that realistically suit Jelinek’s qualifications and capabilities. O’Leary v. Schweiker, 710 F.2d 1334, 1338 (8th Cir.1983). In certain cases, the Secretary may meet this burden through" }, { "docid": "9724320", "title": "", "text": "legal significance. \"Work activity is gainful if it is the kind of work usually done for pay or profit, whether or not a profit is realized.\" 20 C.F.R. § 404.1572(b). Keyes established the Church and produces most of the revenue. Keyes' book writing, lectures and seminars are significant mental activities, see 20 C.F.R. § 404.1572(a), and are normally done for profit. 20 C.F.R. § 404.1572(b). Keyes controls the Church's bank account and checking account which is akin to a self-employed person running his own corporation. That he does not intend to realize a profit is immaterial because he performs activities that are normally done for profit. Thus, the activities are gainful. Id. Keyes also contends that the time he spends is too short to constitute substantial activity. Part-time work may be considered substantial, 20 C.F.R. § 404.1572(a). Id. \"A person who is able to engage in substantial gainful work is not disabled although he may be physically impaired.\" 20 C.F.R. § 404.1571; Burkhalter v. Schweiker, 711 F.2d 841, 843 (8th Cir.1983). Keyes' citation to Patane v. Harris, 507 F.Supp. 115 (E.D.Pa.1981), is not helpful. The court in Patane found that attending a board meeting once a month for less than an hour did not constitute substantial activity. But the ALl found, based on Keyes' testimony, that Keyes worked five and a half hours per day five and a half day per week. This is enough disparity to distinguish Patane. A five-hour work day can constitute substantial activity. Burkhalter, 711 F.2d at 841. Moreover, time is only one factor considered in determining substantial gainful activity. See 20 C.F.R. §~ 404.1473(b)-(e), 404.1574. Other considerations include (1) how well the person is able to perform the work, (2) special conditions under which the work is performed, and (3) self-employment. 20 C.F.R. § 404.1573(b)-(e); Mullis v. Bowen, 861 F.2d 991, 993 (6th Cir.1988). Keyes generates most of the Church's revenue through his books and seminars, indicating that Keyes' work is profitable. His involvement in the supervision of Church employees and the scope of his administrative duties reflect major responsibility within the Church. His work" }, { "docid": "10476015", "title": "", "text": "Logically, the same standard ought to apply to a claimant’s ability to obtain future work, i.e. if the claimant is not presently engaging in substantial gainful activity, but has the potential to do so in the future, then she is not disabled. However, that is not the way the Secretary has historically interpreted the regulations. Rather, in assessing a claimant who is not presently engaged in substantial gainful activity, the Secretary has always asked whether the claimant is capable of working an eight-hour day. Thus Social Security Ruling 83-10 defines “sedentary”, “light”, and other forms of work in terms of the number of hours of sitting and standing that are required in an eight hour workday. Social Security Ruling 83-10, Unempl.Ins.Rep. (CCH) (New Matters) ¶ 14,-531. Similarly, RFC forms are primarily directed at determining whether the claimant is capable of working an eight hour day. The Ninth Circuit has always assumed that where a claimant is not presently engaged in substantial gainful activity, the burden is on the Secretary to demonstrate that the claimant is capable of working an eight-hour day at some other job that exists in sufficient numbers in the national economy. Rodriguez, 876 F.2d at 762 (claimant who’ could only work four hours a day was presumptively disabled.) Other courts have reached the same conclusion, without first assessing whether the claimant could potentially earn $500 a month while working part-time. See, e.g., Cavitt v. Schweiker, 704 F.2d 1193, 1194-95 (10th Cir.1983) (claimant able to sit two hours and stand one hour was presumptively disabled); Johnson v. Harris, 612 F.2d 993, 998 (5th Cir.1980) (claimant only able to work four hours per day was disabled); Harris v. Sullivan, 770 F.Supp. 935, 940 (D.Del.1991) (claimant who could not sit/stand for total of 8 hours was presumptively disabled, since SSR 83-10 assumes a claimant must be able to work an 8 hour day). It is uncertain why the Secretary first created this distinction between present substantial gainful activity ■ and potential substantial gainful activity. Nonetheless, the Secretary’s regulations and practices have long recognized such a distinction. . The eight-hour day" } ]

[ { "docid": "22663609", "title": "", "text": "Zhou Yun Zhang, 386 F.3d at 74 (“[T]he [reviewing] court may not itself hypothesize excuses for ... inconsistencies [in a petitioner’s testimony], nor may it justify the contradictions or explain away the improbabilities. Its limited power of review will not permit it to reverse the BIA simply because [it] disagree[s] with its evaluation of the facts.”) (last two alterations in original) (internal quotation marks omitted). Of course, the fact that an IJ “has relied primarily on credibility grounds in dismissing an asylum application cannot insulate the decision from review.” Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). If the testimony provided is otherwise “generally consistent, rational, and believable,” the presence of some inconsistent testimony need not necessarily be fatal to a petitioner’s claims if the disparities are “relatively minor and isolated and do not concern material facts.” See Diallo v. INS, 232 F.3d 279, 288 (2d Cir.2000) (citation omitted). Likewise, an IJ’s credibility determination will not satisfy the substantial evidence standard when it is based entirely on flawed reasoning, bald speculation, or conjecture. See Secaida-Rosales, 331 F.3d at 307, 312. Moreover, where an IJ’s decision “omit[s] potentially significant facts” so fundamental to the claim that “we are unable adequately to consider whether substantial evidence supported] the BIA’s determination,” we may remand for further consideration. See Tian-Yong Chen v. INS, 359 F.3d 121, 127 (2d Cir.2004). Nevertheless, we may affirm an adverse credibility finding even when the IJ’s reasoning is deficient in certain respects, provided that despite any errors — considered in the context of the IJ’s entire analysis— we can state with confidence that the same decision would be made if we were to remand. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 395, 401-02 (2d Cir.2005). Although we customarily afford “ ‘particular deference to the credibility determinations of the IJ,’ ” Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003) (quoting Montero v. INS, 124 F.3d 381, 386 (2d Cir.1997)), in this case we are troubled by the fact that the IJ’s opinion occasionally lapses into the sort of “bald speculation” we" } ]

[ { "docid": "20206591", "title": "", "text": "and was placed in removal proceedings. In December 2004, Huang submitted applications for asylum, withholding of removal, and relief under the Convention Against Torture. In the statement attached to her application, Huang claimed that (1) she feared persecution because her father is wanted by the local public security bureau because he practices Falun Gong, (2) she had an IUD inserted following the birth of her only child, but fears persecution because she had it removed by a doctor in the United States, (3) although she is divorced and her husband has custody of their only son, she will be unable to have children if she remarries (which she desires), (4) she will be forced to undergo an abortion or sterilization if she becomes pregnant, and (5) she will be tortured if returned to China because she departed China illegally. In May 2005, at the conclusion of a hearing on the merits of Huang’s claims, the IJ found that she had not demonstrated eligibility for relief. The IJ concluded, inter alia, that a forced IUD insertion does not constitute persecution. Huang filed a timely appeal with the BIA, arguing that a forced IUD insertion amounts to persecution. In October 2006, the BIA dismissed Huang’s appeal in a non-precedential opinion. The BIA held that while a forced IUD insertion is “an intrusion on the respondent’s body,” it does not rise to the level of persecution. With regard to Huang’s fear of future persecution, the BIA concluded that her claim that she would be forced to undergo an abortion or sterilization if she became pregnant with a second child was too speculative to merit relief because Huang had only one child, was not married, and was not pregnant. Huang timely petitioned for review of the BIA’s decision. In September 2007, this Court granted Huang’s petition and remanded the case to the BIA for reconsideration in light of our prior decision in Ying Zheng v. Gonzales, 497 F.3d 201 (2d Cir.2007). See Xia Fen Huang v. U.S. Dep’t of Justice, 248 FedAppx. 214, 2007 WL 2736539 (2d Cir.2007). On remand, the BIA again dismissed" }, { "docid": "22949607", "title": "", "text": "IJ questioned her father’s letter, as it contained statements that were untrue and inconsistent with Huang’s testimony, and it found that Huang had attended a birth control school that appeared to be a part of the educational program for young people in China. Based on Huang’s testimony regarding the “family registry,” the IJ found that it was unclear how the Chinese government could have believed that Huang’s parents had violated the family planning policy or that her parents’ past violation resulted in her receiving a crude gynecological exam at the age of 17. In short, the IJ found that “[t]his case makes absolutely no sense,” and that while background materials for China indicate a history of forced family planning procedures such as IUD insertion and sterilization, none of it applied to Huang. The IJ further found that it was “ludicrous” to believe that, after 20 days of detention, Huang was released to her family and, after four days, gathered an extremely large sum of money and made arrangements for her travel to the United States. Thus, the IJ denied Huang’s application for asylum, withholding of removal, and relief under the CAT. The BIA issued a written per curiam opinion stating the following: Even accepting the respondent’s claim as credible, she still would not meet her burdens of proof for asylum, withholding of removal, or protection under the Convention Against Torture. We further note that the decision of the United States Court of Appeals for the Ninth Circuit cited by the respondent on appeal was decided on different facts in a case arising in a different circuit than the present case. Accordingly, the appeal is dismissed. On appeal, Huang first argues that the BIA’s decision is incapable of review because it does not adopt the IJ’s reasoning, but rather simply gives a conclusion that Huang could not meet her burdens of proof, which she argues is impermissible. Without an explanation of the BIA’s reasoning, Huang argues that we must vacate the decision. Huang does not cite to a single statute, regulation, or case to support her argument. In any event, the" }, { "docid": "22949606", "title": "", "text": "authorities could have known that Huang’s mother had more than one child. Huang responded that the government was suspicious and forced her mother to undergo sterilization in 1990.' Lastly, the IJ expressed her opinion that Huang’s application was not credible and bordered on frivolous, but that she would not render a finding of frivolity because of Huang’s age. The IJ issued an oral decision, finding that, while a person forced to abort a pregnancy or undergo involuntary sterilization or who has been ■ persecuted for failing to undergo such procedures meets the statutory definition for persecution on account of political opinion, Huang’s case was not such a case. The IJ found that Huang had been required to attend a gynecological exam that was conducted in a rough matter even though she had not yet turned 18 years of age. She refused to go for a second exam, was detained for 20 days, and then four days later left China for a “voyage of several months around the world” before arriving in the United States. The IJ questioned her father’s letter, as it contained statements that were untrue and inconsistent with Huang’s testimony, and it found that Huang had attended a birth control school that appeared to be a part of the educational program for young people in China. Based on Huang’s testimony regarding the “family registry,” the IJ found that it was unclear how the Chinese government could have believed that Huang’s parents had violated the family planning policy or that her parents’ past violation resulted in her receiving a crude gynecological exam at the age of 17. In short, the IJ found that “[t]his case makes absolutely no sense,” and that while background materials for China indicate a history of forced family planning procedures such as IUD insertion and sterilization, none of it applied to Huang. The IJ further found that it was “ludicrous” to believe that, after 20 days of detention, Huang was released to her family and, after four days, gathered an extremely large sum of money and made arrangements for her travel to the United States." }, { "docid": "22179382", "title": "", "text": "OPINION IKUTA, Circuit Judge: Ling Huang, a native and citizen of China, petitions for review of the denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) by the Board of Immigration Appeals (BIA). Because the record in this case does not compel the conclusion that Huang’s testimony was credible and persuasive, we affirm the immigration judge’s determination that Huang failed to carry her burden of proving her eligibility for relief. I Huang entered the United States on May 11, 2006 on a student visa, and applied for asylum and withholding of removal on April 12, 2007. Huang conceded her inadmissibility, and appeared before an immigration judge (IJ) for a merits hearing on January 10, 2008. Huang testified as follows at the merits hearing. While attending an underground Christian “house church” in China, she was arrested and taken to the police station. While in police custody, a female officer pulled her hair, pushed her to the ground, and kicked her. Huang was then placed in a cell and forced to perform manual labor, such as cleaning toilets and moving bricks. After three days, Huang’s family bailed her out of jail for 8,500 RMB and she returned home. She provided a bail receipt from China for the crime of “violating the management of public order with a mob,” but it did not reference her participation in a house church or otherwise corroborate Huang’s testimony. As a condition of her release, Huang signed a document promising that she would not continue to participate in underground Christian activities. She ceased attending underground churches after her arrest, but continued to practice Christianity through private prayer. Following this incident, Huang secured a student visa to the United States with the help of a private agency specializing in foreign study trips. Upon her arrival in the United States, Huang studied at Merced College for six months, but ended her studies after running out of money to pay tuition. Huang claimed that she continued to practice Christianity while in the United States. She stated she was baptized on April 8," }, { "docid": "22773885", "title": "", "text": "2003 and a daughter in 2007. Huang, the lead petitioner, filed an application for asylum in 2006. She and her husband were served with notices to appear before immigration authorities in 2007 and conceded removability. Huang was the only witness at the hearing before the IJ. She testified that if she was removed, she would take her two children with her and live at her husband’s home in Huang Qi Township in Fujian Province. She understood the local family planning policy to be “one birth, IUD; two birth[s], sterilization” and that she had been informed of this policy 300-400 times from radio broadcasts. She testified that she would be forcibly sterilized and also fined 20,000-25,000 RMB for violating the policy, that she could not pay such a fine, and that, as a result of nonpayment, she would be jailed and her home destroyed. She also testified that her father, uncle, five aunts, and two friends had been forcibly sterilized. The IJ ruled that the application was timely. The BIA did not disagree, and the Government has not challenged timeliness in this Court. Turning to the merits, the IJ recognized that an asylum applicant “must demonstrate an actual and genuinely held subjective fear of persecution and further show this fear is objectively reasonable, i.e., well-founded.” IJ Op. at 4 (citing INS v. Cardozar-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). After explicitly finding Huang to be a credible witness, the IJ stated, “[S]he has demonstrated that were she to be returned to China, the local authorities who would have jurisdiction over her family planning situation would coercively sterilize her and also impose a significant fine on her.” IJ op. at 10 (emphasis added). Implicitly treating this credible testimony as establishing Huang’s subjective fear of persecution, the IJ considered the objective component of such fear and ruled that Huang “at least meets the reasonable person standard for a well-founded fear of coercive sterilization were she to be returned to People’s Republic of China.” Id. at 12. Having ruled that Huang was eligible for asylum, the IJ then ruled that" }, { "docid": "22245033", "title": "", "text": "application is not credible, our review is especially limited and highly deferential.” Borovikova, 435 F.3d at 156 (internal quotation marks omitted); see also Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir.2005) (“We afford particular deference in applying the substantial evidence standard when reviewing an IJ’s credibility findings.” (internal quotation marks omitted)). “When an IJ has supported an ultimate finding that an applicant’s testimony was not credible by concluding that significant aspects of the testimony were implausible, the decisions of our Court have not been entirely consistent.” Ming Xia Chen v. BIA 435 F.3d 141, 145 (2d Cir.2006). For example, “we have cited approvingly the BIA’s view that an adverse credibility finding may be based on ‘inherently improbable testimony.’ ” Id. (quoting Diallo v. INS, 232 F.3d 279, 287-88 (2d Cir.2000)); see In re S-M-J-, 21 I. & N. Dec. 722, 729 (B.I.A.1997) (“Adverse credibility determinations are appropriately based on inconsistent statements, contradictory evidence, and inherently improbable testimony .... ”). But we have also said that an “IJ must point to valid, or specific, cogent reasons for rejecting an applicant’s testimony and may not reject testimony based on speculation.” Ming Xia Chen, 435 F.3d at 145 (internal quotation marks and citations omitted). To be sure, “the line between reasonable inference-drawing and speculation is imprecise,” Guo-Le Huang v. Gonzales, 453 F.3d 142, 147 (2d Cir.2006), and we do not undertake such a delineation here. Nevertheless, we must decide on which side of this blurry divide Li’s case falls. See Ming Xia Chen, 435 F.3d at 145. B. The IJ found Li’s account implausible because: [1] Li claimed to promote Falun Gong for over six years (beginning at age 14) without ever learning or practicing it herself. [2] The police sought to arrest Li, a teenager who never studied or practiced Falun Gong in China; yet her uncle’s friend, a Falun Gong practitioner, openly visited her home twenty times and was never arrested. [3] Li was able to depart China from the airport using her own passport. [4] At her hearing, Li recited only “elementary information” about Falun" }, { "docid": "13631842", "title": "", "text": "challenge on the record before us. It is, of course, clearly established that “[a] well-founded fear” of future persecution “has both a subjective and an objective component.” Jian Xing Huang v. INS, 421 F.3d 125, 128 (2d Cir.2005) (per curiam) (internal quotation marks omitted). Thus, even though the IJ credited Yan Fang Zhang’s professed subjective fear of future sterilization in China, to secure relief from removal, she was required to adduce some “other proof or objective facts” to demonstrate that her fear was objectively well founded. Zhao Jin Lin v. Attorney Gen. of United States, 441 F.3d 193, 195 n. 1 (2d Cir.2006) (per curiam) (quoting Abankwah v. INS, 185 F.3d 18, 22 (2d Cir.1999)). Applying these principles in Jian Xing Huang v. United States INS, this court ruled that the fact that an alien had two children born in the United States was insufficient, by itself, to demonstrate such an objectively well-founded fear. See 421 F.3d at 128-29. Noting that, in that case, “there was no evidence in the record as to how (if at all) Chinese family planning policy applied to the parents of children born abroad,” id. at 127, and that country reports, in fact, suggested “that couples returning to China with more children than they would have been permitted at home are at worst, given modest fines,” id. at 129 (internal quotation marks omitted), we declined to review the agency’s denial of relief from removal. On a preliminary review, this case appears analogous to Jian Xing Huang. We do not, however, conclusively decide that question at this time because we identify another concern that must first be resolved: the agency’s grant of relief from removal to Yan Fang Zhang’s husband apparently on the same ground that it denied relief to her — feared future sterilization based on the birth of two children in the United States. Although the BIA was aware of the former grant of relief when it affirmed the IJ’s denial of relief to Yan Fang Zhang, it failed to address, much less explain, its apparent inconsistent treatment of the couple’s seemingly identical future" }, { "docid": "22179394", "title": "", "text": "That’s a yes or no question. A: (No audible response.) Q: Did your attorney talk to you about what would be expected in court? A: Yes, he did. Q: Then your baptismal certificate and letters from people in the church would have been obvious documents that should have been presented. I don’t understand why you seem so surprised that the Court would like to see some things like that. A: I, I thought that if I could provide the photo showing the procedure of the baptism, it would be the same. This was my personal thought of course. This documentation of Huang’s non-responsive hesitations is sufficient to support the IJ’s demeanor finding, see Shrestha, 590 F.3d at 1042, which in turn sustains the IJ’s adverse credibility determination. In making this adverse credibility determination, the IJ complied with the statutory requirement of reviewing the record as a whole and discussing the “totality of the circumstances” underlying the adverse credibility determination. See 8 U.S.C. § 1158(b)(l)(B)(iii) (describing factors on which the IJ may base a credibility determination in light of “the totality of the circumstances, and all relevant factors”). First, the IJ appropriately considered “relevant evidence that tends to contravene a conclusion that a given factor undermines credibility.” Shrestha, 590 F.3d at 1044. The IJ noted that Huang gave a plausible explanation for the inconsistencies between her testimony at the initial asylum interview and her testimony at the merits hearing. Accordingly, the IJ did not consider Huang to be less credible on account of those inconsistencies. Similarly, the IJ explained that while Huang’s “knowledge of Christian faith was extremely superficial and vague ... she was able to recite at least one well-known Christian prayer.” The IJ therefore did not view this aspect of Huang’s testimony as weighing against her credibility. Further, the IJ not only considered Huang’s demeanor, but also indicated that Huang’s testimony was not persuasive or sufficiently specific to carry her burden of proof. See 8 U.S.C. § 1158(b)(l)(B)(ii) (requiring an applicant to “satisfy the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific" }, { "docid": "23202830", "title": "", "text": "denial of petitioners’ claims for asylum. Because withholding of removal carries a higher burden of proof than asylum, the request for withholding was properly denied, as well. See Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir.2004). Finally, because petitioners do not challenge the denial of CAT relief in their brief before this Court, we deem that issue waived and do not address it. See Lie v. Ashcroft, 396 F.3d 530, 532 n. 1 (3d Cir.2005). We have considered whether our recent decision in Huang v. Att’y Gen., 620 F.3d 372 (3d Cir.2010), warrants a remand of this matter to the BIA, but we conclude that it does not. In Huang, the BIA reversed an IJ’s decision to grant asylum based on a finding that the petitioner had an objectively well-founded fear that she would be forcibly sterilized upon returning to China with her two children born in the United States. This Court observed that, in reversing the IJ’s determination that Huang’s fear was well-founded, the BIA had “failed to address any evidence [of record] that, if credited, would lend support to Huang’s asserted fear of sterilization, and thus [the BIA] decision does not reflect a consideration of the record as a whole.” Id. at 388. We noted that, “[w]hile we are not suggesting that the BIA must discuss every piece of evidence mentioned by an asylum applicant, it may not ignore evidence favorable to the alien.” Id. Consequently, because the BIA’s analysis in Huang did “little more than cherry-pick a few pieces of evidence, state why that evidence does not support a well-founded fear of persecution, and conclude that Huang’s asylum petition therefore lacks merit,” we remanded for the BIA to conduct a proper review and to determine from the evidence of record whether there-is a reasonable possibility of forced sterilization and whether Huang’s fear is objectively reasonable. Id. In the present case, we do not find a similar flaw in the agency’s analysis. As discussed, the IJ sufficiently considered the relevant documents and evidence of record. Unlike Huang, where “the BIA discussed none of [the record] evidence” suggesting" }, { "docid": "22541044", "title": "", "text": "74 (internal citations and quotation marks omitted). We may, however, vacate and remand an adverse credibility determination if we find that the IJ has failed to “act fairly in judging credibility and in assessing the sufficiency of the evidence,” Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 394 (2d Cir.2005), e.g., where the IJ based the credibility ruling “upon speculation or upon an incorrect analysis of the testimony,” id. at 400, or where the IJ unduly relied on inconsistencies that are “relatively minor and isolated and do not concern material facts,” Diallo v. INS, 232 F.3d 279, 288 (2d Cir.2000) (internal citations omitted). Notwithstanding these types of errors, we may still affirm a credibility finding if we can confidently predict that “there is no realistic possibility that, absent the errors, the IJ or BIA would have reached a different conclusion.” Cao He Lin, 428 F.3d at 401. A. Biao Yang The IJ determined that Yang was not credible based on: (1) Yang’s failure to mention at his airport interview that he was ever arrested or beaten; (2) inconsistencies in his testimony regarding the chronology of events; (3) an implausible and inconsistent account of how he escaped from detention; (4) the IJ’s observation that Yang appeared to be “simply making up testimony when confronted by inconsistencies”; (5) contradictory and implausible testimony regarding his employment; and (6) contradictory evidence regarding when Yang decided to leave China. These findings, which are supported by the record, are more than sufficient to support an adverse credibility determination. Furthermore, Yang acknowledged making the inconsistent statements at the airport, and because there is no evidence of any coercion in the interview transcript—and Yang provided no other indication that the interview transcript was unreliable—the IJ properly relied on that transcript and rejected Yang’s various explanations as inadequate. See Ramsameachire v. Ashcroft, 357 F.3d 169, 179-80 (2d Cir.2004). Moreover, the IJ made clear that his findings were based, in part, on Yang’s demeanor, and we normally afford such findings particular deference. See Zhou Yun Zhang, 386 F.3d at 73. Accordingly, the adverse credibility finding underlying the" }, { "docid": "22179397", "title": "", "text": "receipt. These items do not provide persuasive documentation of Huang’s story. Because the IJ’s well-supported demeanor findings are entitled to special deference, Singh-Kaur, 183 F.3d at 1151, and the IJ appropriately considered the record as a whole and “the totality of the circumstances,” 8 U.S.C. § 1158(b)(l)(B)(iii), we are not compelled to conclude that Huang was credible. We therefore defer to the IJ’s adverse credibility determination, and must give no weight to Huang’s testimony. The remaining evidence in the record does not compel us to overturn the IJ’s determination that Huang failed to carry her burden of proving eligibility for asylum. Because Huang failed to carry her burden for asylum, we also hold that the record does not compel the conclusion that she meets the more stringent standard for withholding of removal. Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). Nor does the record compel the conclusion that Huang is eligible for protection under the Convention Against Torture. “[S]he has not demonstrated that, more likely than not, she will be tortured at the instigation of, or with the acquiescence of’ the Chinese government. Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir.2008). Accordingly, we deny her petition for review. PETITION DENIED. . Section 1158(b)(l)(B)(iii) states in relevant part: Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant's or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstance under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor. 8 U.S.C. § 1158(b)( 1 )(B)(iii)." }, { "docid": "22945069", "title": "", "text": "Lin v. U.S. Dep’t of Jus tice, 428 F.3d 391, 400 (2d Cir.2005) (quoting Secaida-Rosales, 331 F.3d at 307 (citation omitted) (emphasis in original)). We review IJs’ factual findings, however, under the substantial evidence standard, sustaining all findings that are “supported by ‘reasonable, substantial, and probative’ evidence in the record when considered as a whole.” Secaida-Rosales, 331 F.3d at 307 (quoting Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000)); see 8 U.S.C. § 1252(b)(4)(B) (providing that administrative findings of fact “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”). Despite errors in an IJ’s decision, we will not remand if it would be futile to do so. Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 161 (2d Cir.2006). Remand would be futile if we can “ ‘confidently predict’ that the IJ would reach the same decision absent the errors that were made.” Id. at 162 (quoting Cao He Lin, 428 F.3d at 395). That is, “to deny review in the face of ... errors, a court must have confidence that an error-free proceeding would yield the same result.” See Li Zu Guan v. INS, 453 F.3d 129, 138 (2d Cir.2006). Here, the IJ rejected Edimo-Doualla’s claim of political persecution. He never made a specific adverse credibility determination. Instead, from what we can discern, the IJ appears to have analyzed in turn the various incidents of abuse to which Edimo-Doualla testified and concluded, on different grounds, that the 1991 and 1996 arrests; the 1997 arrest, detention and beating; and the April 2000 arrest, detention and beating did not constitute political persecution. This opinion tracks the organization of the IJ’s decision. We find that the IJ’s reasoning as to each incident of alleged persecution was flawed in multiple respects. Because we cannot confidently predict that the IJ would reach the same result absent these errors, we remand to the BIA. I. The 1991 and 1996 Arrests The IJ appears to have accepted as true Edimo-Doualla’s testimony regarding the 1991 and 1996 arrests. He concluded, however, that Edimo-Doualla had not demonstrated a connection between" }, { "docid": "13631841", "title": "", "text": "F.3d 121, 128 (2d Cir.2004) (observing that persecution requires more than mere harassment), and does not indicate political motivation. To the extent petitioner found herself physically assaulted and harassed by a factory supervisor as a result of the factory protest, the IJ found this dispute to be personal, and we cannot conclude that the record evidence compelled otherwise. See 8 U.S.C. § 1252(b)(4)(B); Ivanishvili v. United States Dep’t of Justice, 433 F.3d at 341-42 (noting that for actions of private persons to support relief from removal, government must be unwilling or unable to control such persons). Accordingly, we deny the petition for review insofar as it challenges the agency’s finding that Yan Fang Zhang failed to demonstrate past political persecution. 2. Feared Future Persecution Based on China’s Family Planning Policies Petitioner contends that, because she has given birth to two children while in the United States, the IJ and BIA erred in concluding that she failed to establish a well-founded fear of future persecution, specifically, forced sterilization, if returned to China. We cannot resolve this challenge on the record before us. It is, of course, clearly established that “[a] well-founded fear” of future persecution “has both a subjective and an objective component.” Jian Xing Huang v. INS, 421 F.3d 125, 128 (2d Cir.2005) (per curiam) (internal quotation marks omitted). Thus, even though the IJ credited Yan Fang Zhang’s professed subjective fear of future sterilization in China, to secure relief from removal, she was required to adduce some “other proof or objective facts” to demonstrate that her fear was objectively well founded. Zhao Jin Lin v. Attorney Gen. of United States, 441 F.3d 193, 195 n. 1 (2d Cir.2006) (per curiam) (quoting Abankwah v. INS, 185 F.3d 18, 22 (2d Cir.1999)). Applying these principles in Jian Xing Huang v. United States INS, this court ruled that the fact that an alien had two children born in the United States was insufficient, by itself, to demonstrate such an objectively well-founded fear. See 421 F.3d at 128-29. Noting that, in that case, “there was no evidence in the record as to how (if" }, { "docid": "22616640", "title": "", "text": "past persecution or had a well-founded fear of future persecution or torture.” Ramsameachire v. Ashcroft, 357 F.3d 169, 177 (2d Cir.2004) (quoting Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000)). The BIA’s interpretation of the Immigration and Naturalization Act is reviewed with deference. See Ming Lam Sui v. INS, 250 F.3d 105, 112 (2d Cir.2001); Michel v. INS, 206 F.3d 253, 262 (2d Cir.2000). To be eligible for asylum, Huang had the burden of demonstrating that he was subject to past persecution or had a well-founded fear of future persecution on the basis of political opinion or his membership in a particular group. 8 U.S.C. § 1101(a)(42); See Xin-Chang Zhang v. Slattery, 55 F.3d 732, 737-38 (2d Cir.1995); 8 C.F.R. §§ 208.13(b)(1)-(2)(2000 & 2002). The IJ granted Huang’s application on the basis of likely future persecution. Huang did not cross-appeal or offer any alternative basis for asylum or withholding. The BIA reversed the IJ, concluding that Huang had not established likely future persecution. A well-founded fear has “both a subjective and an objective component.” Gomez v. INS, 947 F.2d 660, 663 (2d Cir.1991). An alien must therefore “present credible testimony that he subjectively fears persecution and establish that his fear is objectively reasonable.” Ramsameachire, 357 F.3d at 178 (citation omitted). Objective reasonableness entails a showing that a reasonable person in the petitioner’s circumstances would fear persecution if returned to his native country. 8 C.F.R. § 208.13(b)(2); Xin-Chang Zhang, 55 F.3d at 737-38. By statute, “a person who has a well founded fear that he ... will be forced to undergo [involuntary sterilization] or subject to persecution for” “failure or refusal to undergo such a procedure or for other resistance to a coercive population control program” “shall be deemed to have a well founded fear of persecution on account of political opinion.” 8 U.S.C. § 1101(a)(42). To prevail on that ground, Huang was required to offer credible, specific, and detailed evidence that his well-founded fear is either of forcible sterilization or of some other sort of persecution based on resistance to China’s family planning policies. Id.; see also 8 C.F.R." }, { "docid": "22616643", "title": "", "text": "record, but it was entitled to rely on it, so long as in doing so it did not overlook any contradictory evidence directly presented by the petitioner. See Tian-Yong Chen v. INS, 359 F.3d 121, 127-30 (2d Cir.2004) (remanding where IJ, in reliance on general conditions in a country report, had failed to consider direct, particular evidence of petitioner’s past persecution). The only relevant evidence that Huang adduced to support his claim was testimony about his sister-in-law’s experiences, the record of his daughter’s birth, and a letter indicating his wife’s pregnancy. Huang’s testimony that his sister-in-law had been forcibly sterilized was sparse and uncorroborated, and would not be probative even if believed because Huang omitted any evidence that might bear on whether Huang might be in similar circumstances (such as the locality in which this woman lived, when she was sterilized, her marital status and the number and sex of her children at that time, and so on). Moreover, Huang has two older sisters, one with two sons and one with three children, and he made no allegation that they had been penalized in any way for having children. In the absence of solid support in the record for Huang’s assertion that he will be subjected to forced sterilization, his fear is speculative at best. See INS v. Cardoza-Fonseca, 480 U.S. 421, 440, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (well-founded fear does not require high probability of persecution, but does require “an objective situation... established by the evidence”) (quoting INS v. Stevic, 467 U.S. 407, 424-25, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984)). “Because the withholding of removal analysis overlaps factually with the asylum analysis, but involves a higher burden of proof, an alien who fails to establish his entitlement to asylum necessarily fails to establish his entitlement to withholding of removal.” Ramsameachire, 357 F.3d at 178. For the foregoing reasons, we deny Huang’s petition. In so ruling, the BIA apparently assumed, without specifically deciding, that a Chinese national can support an asylum claim with evidence of children born to him after his illegal entry into the United States." }, { "docid": "22179384", "title": "", "text": "2007, and provided photographs which she claimed showed her baptismal ceremony, which was performed by another member of the church. According to her testimony, Huang then began to attend a different church in Modesto, California in August 2007, but stopped going after a few months in order to help her uncle on the weekends. Huang did not produce a baptismal certificate or any other evidence corroborating her church attendance in either the United States or in China. Huang testified that she observed Easter and Christmas, and she recited the Lord’s Prayer and other Christian prayers. In a decision issued on January 10, 2008, the IJ found that Huang’s testimony was not credible. She noted two reasons for this conclusion. First, the IJ found that Huang’s demeanor undermined her credibility, noting that Huang paused frequently while testifying “as if to assess the impact of the answer she provided.” Further, the IJ found that Huang’s testimony was “extremely superficial,” and “could easily have been memorized.” Second, the IJ noted that much of Huang’s testimony was unpersuasive and not supported by reasonably obtainable corroborating evidence. While the photographs and bail bond receipt provided some evidence that Huang was a Christian who had participated in a home church, they were insufficient to prove that she was eligible for asylum or other relief. Because Huang’s testimony was not credible, the IJ held the evidence in the record was “insufficient to meet [Huang’s] burden of proof’ that she was eligible for asylum or withholding. In addition, the IJ denied her protection under CAT because there was no evidence that Chinese authorities would torture Huang on her return to China. Huang appealed the denial of her claim to the BIA, which affirmed the IJ’s ruling in full. Huang then filed a timely petition for review on September 8, 2009. II We have jurisdiction under 8 U.S.C. § 1252 to review final orders of removal. Li v. Holder, 656 F.3d 898, 901 (9th Cir.2011). We review “denials of asylum, withholding of removal, and CAT relief for substantial evidence and will uphold a denial supported by reasonable, substantial, and" }, { "docid": "22095281", "title": "", "text": "then explained that, in her view, petitioners’ eligibility for asylum turned on whether the repercussions of their daughter-in-law’s refusal to comply with the family planning officials — the ransacking of their house, the detentions of Feng, and the termination of Huang’s employment — eon-stituted persecution on account of their opposition to China’s family planning policy. But the IJ found that, with respect to Feng, “two brief detentions do not constitute past persecution,” and that with respect to Huang, neither did his firing. The IJ also concluded that petitioners did not have a well-founded fear of future persecution because their eldest son and daughter-in-law were no longer in China, having been granted asylum in America, and because a great deal of time had elapsed — approximately twelve and fourteen years for Feng and Huang, respectively — since petitioners were last in China. With respect to their CAT claim, the IJ found that there was no evidence to support petitioners’ claim that they would be tortured for illegally exiting China. Petitioners timely appealed to the BIA, which affirmed without opinion on September 24, 2002. These petitions for review followed. II. Because the BIA affirmed on the IJ’s opinion, we review the IJ’s decision directly. See Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). The IJ’s factual determinations must be affirmed if they are supported by “reasonable, substantial, and probative evidence in the record,” Id. at 307 (internal quotation marks omitted); see also Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (substantial evidence involves only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”) (internal quotation marks omitted). We review the IJ’s legal conclusions, as always, de novo. See Liao v. United States Dep’t of Justice, 293 F.3d 61, 66 (2d Cir.2002). III. “To establish eligibility for asylum, a petitioner must show that he is a ‘refugee’ within the meaning of the Immigration and Nationality Act, i.e., that he has suffered past persecution on account of ‘race, religion, nationality, membership in a particular social group, or political opinion,’ or that" }, { "docid": "22245034", "title": "", "text": "valid, or specific, cogent reasons for rejecting an applicant’s testimony and may not reject testimony based on speculation.” Ming Xia Chen, 435 F.3d at 145 (internal quotation marks and citations omitted). To be sure, “the line between reasonable inference-drawing and speculation is imprecise,” Guo-Le Huang v. Gonzales, 453 F.3d 142, 147 (2d Cir.2006), and we do not undertake such a delineation here. Nevertheless, we must decide on which side of this blurry divide Li’s case falls. See Ming Xia Chen, 435 F.3d at 145. B. The IJ found Li’s account implausible because: [1] Li claimed to promote Falun Gong for over six years (beginning at age 14) without ever learning or practicing it herself. [2] The police sought to arrest Li, a teenager who never studied or practiced Falun Gong in China; yet her uncle’s friend, a Falun Gong practitioner, openly visited her home twenty times and was never arrested. [3] Li was able to depart China from the airport using her own passport. [4] At her hearing, Li recited only “elementary information” about Falun Gong and presented photographs of herself practicing Falun Gong which were, as Li acknowledged, taken on a single occasion. Li responds that [1] she can claim persecution on account of her support for Falun Gong without practicing it; [2] nothing indicates that Li’s neighbors or the authorities knew that she was discussing Falun Gong with her uncle’s friend; [3] she was probably able to leave China on her own passport because she was wanted by local, not national authorities; and [4] she answered every question asked regarding her present involvement with Falun Gong. Some features of Li’s account that were doubted by the IJ can be rationalized or subjected to useful further inquiry and analysis. But when an adverse credibility finding is based partly or entirely on implausibility, we review the entire record, not whether each unusual or implausible feature of the account can be explained or rationalized. See Borovikova, 435 F.3d at 161 (“When an IJ bases an adverse credibility finding on multiple grounds, we review the totality of the IJ’s decision, instead of" }, { "docid": "22750975", "title": "", "text": "IJ’s analysis of the credibility of Cao’s overall account. She identified two reasons for finding incredible Cao’s claims that he and Lin had been subjected to persecution and that he feared future persecution. First, she found Cao’s account implausible, positing that he would not have left China if he truly feared his wife was in danger of having to undergo an abortion or of being sterilized. However, Cao explained why he believed his wife would be safer if he left China. He testified that (1) he be lieved he had ensured his wife’s safety by hiding her with his aunt and (2) he believed she would have a better chance of avoiding sterilization if he were out of the country. He also claimed that it was not safe for Lin to flee China while she was pregnant. Although the IJ was not required to credit Cao’s explanations even if they appear plausible on a cold record — after all assessing credibility is one of the IJ’s key responsibilities — she was required to take those explanations into account as significant factual assertions supporting Cao’s claim. See Qiu, 329 F.3d at 149-50; cf. Diallo, 232 F.3d at 289 (holding that an adjudicator must evaluate an asylum applicant’s reasons for failing to furnish corroborating evidence). Absent a reasoned evaluation of Cao’s explanations, the IJ’s conclusion that his story is implausible was based on flawed reasoning and, therefore, cannot constitute substantial evidence supporting her conclusion. See Secaida-Rosales, 331 F.3d at 307. Second, the IJ found that Cao’s testimony was not consistent with the State Department’s assessment of conditions in China as presented in Bureau Of Democracy, Human Rights And Labor, United States Department Of State, China: Profile Of Asylum Claims And Country Conditions (April 14, 1998) (“China Profile”). She relied on the report’s conclusion that if a first child born in Cao’s province were female, the couple would be allowed to have a second child. The IJ further noted the report’s conclusion that forced abortions or sterilizations were not usually required when a woman became pregnant before the legal birth age. The IJ" }, { "docid": "22179385", "title": "", "text": "not supported by reasonably obtainable corroborating evidence. While the photographs and bail bond receipt provided some evidence that Huang was a Christian who had participated in a home church, they were insufficient to prove that she was eligible for asylum or other relief. Because Huang’s testimony was not credible, the IJ held the evidence in the record was “insufficient to meet [Huang’s] burden of proof’ that she was eligible for asylum or withholding. In addition, the IJ denied her protection under CAT because there was no evidence that Chinese authorities would torture Huang on her return to China. Huang appealed the denial of her claim to the BIA, which affirmed the IJ’s ruling in full. Huang then filed a timely petition for review on September 8, 2009. II We have jurisdiction under 8 U.S.C. § 1252 to review final orders of removal. Li v. Holder, 656 F.3d 898, 901 (9th Cir.2011). We review “denials of asylum, withholding of removal, and CAT relief for substantial evidence and will uphold a denial supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Garcia-Milian v. Holder, — F.3d —, —, No. 09-71461, 2014 WL 555138, at *2 (9th Cir. Feb. 13, 2014) (quoting Kamalyan v. Holder, 620 F.3d 1054, 1057 (9th Cir.2010)) (internal quotation marks omitted). The BIA’s “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). In other words, in order to reverse the BIA, “we must determine ‘that the evidence not only supports [a contrary] conclusion, but compels it— and also compels the further conclusion’ that the petitioner meets the requisite standard for obtaining relief.” Garcia-Milian, — F.3d at —, 2014 WL 555138, at *2 (alterations in original) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). Where, as here, the BIA adopts the IJ’s decision and adds some of its own analysis, the panel reviews both decisions. Kaur v. Ashcroft, 388 F.3d 734, 736 (9th Cir.2004). To qualify for asylum, an applicant must show that she" } ]

[ { "docid": "1184591", "title": "", "text": "record in this cause, the judgment of conviction heretofore entered by the United States Magistrate is affirmed. . Section 342 provides in part that a “food shall be deemed to be adulterated— ****** (3) if it consists in whole or in part of any filthy, putrid, or decomposed substance, or if it is otherwise unfit for food; or (4) if it has been prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health; . . . . In Del Campo, the court applied the United States Supreme Court’s holding in United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) to inspections under the Food, Drug, and Cosmetic Act. The court held: The defendants could not have demanded a search warrant. The lawfulness of this search was not dependent upon any consent. Its authority was statutory. “We have little difficulty in concluding that where, as here, regulatory inspections further urgent federal interest and the possibilities of abuse and the threat to privacy are not of impressive dimensions, the inspection may proceed without a warrant where specifically authorized by statute.” United States v. Biswell, 406 U.S. 317, 92 S.Ct. 1597. * * * * * * “In the context of a regulatory inspection system of business premises which is carefully limited in time, place, and scope, the legality of the search depends not on consent but on the authority of a valid statute.” 406 U.S. at 315, [92] S.Ct. at 1596. 345 F.Supp. at 1376-77. . Miranda v. Arizona, 384 U.S. 436, 445, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 707 (1966). . 2 U.S.Code Cong. & Admin.News pp. 2198, 2200 (1953)." } ]

[ { "docid": "20904699", "title": "", "text": "guarantees are “placed in jeopardy if the decision to enter and inspect for violation of regulatory laws can be made and enforced by the inspector in the field without official authority evidenced by a warrant.” Id. at 543, 87 S.Ct. at 1739. Indeed, [i]t cannot be doubted that the Fourth Amendment’s commands grew in large measure out of the colonists’ experience with the writs of assistance and their memories of the general warrants formerly in use in England. These writs, which were issued on executive rather than judicial authority, granted sweeping power to customs officials and other agents of the King to search at large for smuggled goods. United States v. Chadwick, 433 U.S. 1, 7-8, 97 S.Ct. 2476, 2481-82, 53 L.Ed.2d 538 (1977). “Against this background, it is untenable that the ban on warrantless searches was not intended to shield places of business as well as of residence.” Marshall v. Barlow’s, Inc., 436 U.S. 307, 312, 98 S.Ct. 1816, 1820, 56 L.Ed.2d 305 (1978). However, as the Court recognized in See, a warrant is not always required, as an administrative subpoena, sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome, will be adequate in certain situations. See, 387 U.S. at 544-45, 87 S.Ct. at 1739-40. While the owner or operator of a business has a recognized privacy interest in commercial property, that expectation of privacy “is different from, and indeed less than, a similar expectation in an individual’s home.” New York v. Burger, 107 S.Ct. 2636, 2642 (1987). In that regard, an exception to the warrant requirement has been recognized for searches of pervasively or closely regulated industries. See Burger, supra (junkyard industry); Dono van v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981) (coal mining); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (firearms); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) (liquor); see also United States v. Acklen, 690 F.2d 70 (6th Cir.1982) (pharmacies); Marshall v. Nolichuckey Sand Co., 606" }, { "docid": "23290251", "title": "", "text": "(j), (1) (1976) (NLRB); 29 U.S.C. §§ 211(a), 217 (1976) (Adm’r FLSA); 49 U.S.C. §§ 16(12), 322(b)(1) (1970) (ICC). . As we have noted, this absence is perhaps attributable to congressional concern about the constitutionality of such enforcement relief. Many of the instances in which Congress did provide for such enforcement are more likely to be upheld under the fourth amendment than was § 8(a) of OSHA, and this may explain why Congress was so discriminating. As examples, the Mine Safety Act and the Air Pollution Control Act, cited above, are of narrower applicability than OSHA, which applies to all employers “engaged in a business affecting commerce.” 29 U.S.C. § 652(5) (1976). Moreover, the industries coming under acts such as that governing mine safety are generally subject to pervasive federal regulation, a factor found critical by the Supreme Court in its decisions upholding warrantless inspections in the liquor industry, Colonnade Catering Corp. v. United States, 397 U.S. 72, 77, 90 S.ct. 774, 777, 25 L.Ed.2d 60 (1970), and the firearms industry, United States v. Biswell, 406 U.S. 311, 316, 92 S.Ct. 1593, 1596, 32 L.Ed.2d 87 (1972). As the Supreme Court stated in Barlow’s: “The reasonableness of a war-rantless search . . . will depend upon the specific enforcement needs and privacy guarantees of each statute. Some . . . statutes . . apply only to a single industry, where regulations might already be so pervasive that a Colonnade-Biswell exception to the warrant requirement could apply.” 436 U.S. at 321, 98 S.Ct. at 1825. . This principle is embodied in the ancient maxim, expressio unius est exclusio alterius. 2A Sands, Sutherland on Statutory Construction § 47.23, at 123 (4th ed. 1973). Of course, rules of statutory construction are merely aids in construction; they do not have the force of law, Commissioner of Internal Revenue v. Ammann, 228 F.2d 417, 419 (5th Cir. 1956), and they should not be invoked to frustrate the obvious intent of the legislature, Nat’l R.R. Passenger Corp. v. Nat’l Ass’n of R.R. Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (1974); SEC" }, { "docid": "16688108", "title": "", "text": "general rule or the Colonnade-Bis-well exception applies. Three courts, relying on this exception, have concluded that warrantless, routine inspections authorized by the Act are permissible. Marshall v. Nolichuckey Sand Co., 606 F.2d 693 (6th Cir. 1979); Marshall v. Stoudt’s Ferry Preparation Co., 602 F.2d 589 (3d Cir. 1979); Youghiogheny and Ohio Coal Co. v. Morton, 364 F.Supp. 45 (S.D.Ohio 1973) (three-judge court). All three decisions held that the congressional authorization of warrantless searches was not unreasonable because of the strong governmental interest in unannounced inspections, the limitations placed on the searches by the statute, and the pervasive governmental regulation of the mining industry. Stoudt’s Ferry and Nolichuckey distinguish Barlow’s on the grounds that inspections under the Coal Act only affect one industry, are limited by specific provisions in the Act, and serve an overriding governmental interest in the safety of miners. Also, as Stoudt’s Ferry notes, Congress specifically approved Youghiogheny. United States v. Consolidation Coal Co., 560 F.2d 214 (6th Cir. 1977), vacated and remanded, 436 U.S. 942, 98 S.Ct. 2842, 56 L.Ed.2d 783 (opinion on remand) 579 F.2d 1011 (6th Cir. 1978), on which Sink relies because of its requirement of an administrative warrant, does not conflict with these cases. The criminal nature of the investigation and the seizure of papers in the company’s office distinguish Consolidation from this appeal, which deals only with a routine safety inspection of Sink’s mine. Although Sink’s small mine was not subject to federal regulation until 1969, his premises are not exempted from warrant-less inspections. See Marshall v. Nolichuckey Sand Co., 606 F.2d 693 (6th Cir. 1979); Marshall v. Stoudt’s Ferry Preparation Co., 602 F.2d 589 (3d Cir. 1979). Conditions in his mine may be as hazardous as the general mine conditions that prompted federal regulation. Congress has as legitimate an interest in protecting all persons from these hazardous conditions as it does in protecting any employee in a large mine. Moreover, the Act restricts the invasion of Sink’s privacy because inspectors may not forcibly enter a mine. Instead, the Secretary must seek an injunction when an operator refuses to allow an inspection." }, { "docid": "23378894", "title": "", "text": "privacy expected aboard the gerrybuilt houseboat, the fact that the appellants were residing aboard the boat may have influenced the decision. . United States v. Whitaker, 592 F.2d 826 (5th Cir. 1979); United States v. Cadena, 585 F.2d 1252, 1264 n.27 (5th Cir. 1978), rehearing denied, 588 F.2d 100 (1979). . United States v. Williams, 589 F.2d 210 at 214 (5th Cir. 1979); Whitaker, supra at 829-830. . Regularity in the sense discussed in the Brennan opinion, supra note 2, played a significant role in the Court’s decision in United States v. Martinez-Fuerte, supra. . See United States v. Brignoni-Ponce, 422 U.S. at 882-83, 95 S.Ct. 2574. . In United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), and Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), the Court upheld administrative inspection schemes that apparently allowed enforcement officers broad discretion to choose the target and time of search. In Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), its most recent treatment of the administrative search exception to the warrant requirement, the Court refused to allow discretionary nonprobable cause inspections by OSHA absent an administrative warrant. But the Court explicitly left open the status of warrantless searches made under other regulatory statutes, noting that the reasonableness of such schemes will depend upon “the specific enforcement needs and privacy guarantees of each statute.” 436 U.S. at 321, 98 S.Ct. at 1825, 56 L.Ed.2d at 317. . United States v. Ortiz, 422 U.S. at 894-95, 95 S.Ct. 2585; United States v. MartinezFuerte, 428 U.S. at 558-59, 96 S.Ct. 3074. . United States v. Ramsey, 431 U.S. 606, 619 n.14, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977), citing Carroll v. United States, 267 U.S. at 149, 45 S.Ct. 280. . United States v. Ramsey, supra, 97 S.Ct. at 1979. In Ramsey, the Court validated customs searches of letters arriving from overseas under a statute allowing search upon “reasonable cause to suspect” that they contained merchandise subject to duty or contraband. In the course of developing" }, { "docid": "18636466", "title": "", "text": "the inspection of the coal or other mine, or the investigation of an accident or occupational disease occurring in, or connected with, such mine.” The propriety of issuing the injunctive relief sought by the plaintiff hinges on two issues: (1) whether the defendant sand and gravel company is covered by the provisions of FMSHA and (2) whether FMSHA is constitutional insofar as it authorizes warrant-less inspections. With regard to the first issue, the starting point of my analysis is 30 U.S.C. § 802(h)(1) which provides that “ ‘coal or other mine’ means (A) an area of land from which minerals are extracted in nonliquid form . . . With regard to this definition, the Senate committee stated that “what is considered to be a mine and to be regulated under this Act” is to be given the broadest possible interpretation and that doubts are to be resolved in favor of inclusion of a facility within the coverage of the Act. S.Rep.No.95-181, 95th Cong., 1st Sess., 1977, U.S.Code Cong, and Admin. News, p. 3414. Since a pit from which sand and gravel are removed falls squarely within the above-quoted definition, the defendant’s operation is within the coverage of the FMSHA. This conclusion is supported by the case of Marshall v. Stoudt’s Ferry Preparation Company, 602 F.2d 589, 592 (3rd Cir. 1979), in which the court found sand and gravel operations to fall within the jurisdiction of the Act. With regard to the second issue, the defendant contends that following Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), FMSHA is unconstitutional insofar as it authorizes warrantless inspections of mines. In Barlow’s, the Supreme Court declared a portion of the Occupational Safety and Health Act of 1970 (OSHA) to be unconstitutional insofar as it authorized warrantless inspections. The Court recognized, however, that a statute might validly authorize a search without a warrant in certain exceptional industries, such as those that are pervasively regulated, typified by United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (firearms), and those closely regulated enterprises having a" }, { "docid": "16688107", "title": "", "text": "L.Ed.2d 87 (1972) (firearms); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) (liquor). In addition, the Court responded to the argument that requiring warrants for OSHA inspections would invalidate warrantless inspections under all other regulatory schemes by explaining, 436 U.S. at 321, 98 S.Ct. at 1825, that: The reasonableness of a warrantless search, however, will depend upon the specific enforcement needs and privacy guarantees of each statute. Some of the statutes cited apply only to a single industry, where regulations might already be so pervasive that a Colonnade-Biswell exception to the warrant requirement could apply. Some statutes already envision resort to federal-court enforcement when entry is refused, employing specific language in some cases . As an illustration of such statutes, the Court referred to 30 U.S.C. § 818, the enforcement provision of the 1977 Mine Safety Act, which is the jurisdictional basis of this proceeding. 436 U.S. at 321-22 n.18, 98 S.Ct. 1816. Clearly, the validity of a warrantless inspection of Sink’s mine depends on whether Barlow’s general rule or the Colonnade-Bis-well exception applies. Three courts, relying on this exception, have concluded that warrantless, routine inspections authorized by the Act are permissible. Marshall v. Nolichuckey Sand Co., 606 F.2d 693 (6th Cir. 1979); Marshall v. Stoudt’s Ferry Preparation Co., 602 F.2d 589 (3d Cir. 1979); Youghiogheny and Ohio Coal Co. v. Morton, 364 F.Supp. 45 (S.D.Ohio 1973) (three-judge court). All three decisions held that the congressional authorization of warrantless searches was not unreasonable because of the strong governmental interest in unannounced inspections, the limitations placed on the searches by the statute, and the pervasive governmental regulation of the mining industry. Stoudt’s Ferry and Nolichuckey distinguish Barlow’s on the grounds that inspections under the Coal Act only affect one industry, are limited by specific provisions in the Act, and serve an overriding governmental interest in the safety of miners. Also, as Stoudt’s Ferry notes, Congress specifically approved Youghiogheny. United States v. Consolidation Coal Co., 560 F.2d 214 (6th Cir. 1977), vacated and remanded, 436 U.S. 942, 98 S.Ct. 2842, 56 L.Ed.2d 783 (opinion" }, { "docid": "18636467", "title": "", "text": "pit from which sand and gravel are removed falls squarely within the above-quoted definition, the defendant’s operation is within the coverage of the FMSHA. This conclusion is supported by the case of Marshall v. Stoudt’s Ferry Preparation Company, 602 F.2d 589, 592 (3rd Cir. 1979), in which the court found sand and gravel operations to fall within the jurisdiction of the Act. With regard to the second issue, the defendant contends that following Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), FMSHA is unconstitutional insofar as it authorizes warrantless inspections of mines. In Barlow’s, the Supreme Court declared a portion of the Occupational Safety and Health Act of 1970 (OSHA) to be unconstitutional insofar as it authorized warrantless inspections. The Court recognized, however, that a statute might validly authorize a search without a warrant in certain exceptional industries, such as those that are pervasively regulated, typified by United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (firearms), and those closely regulated enterprises having a long history of governmental inspection and supervision, Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) (liquor). Both of my colleagues, Chief Judge Reynolds and Judge Warren, sitting in other branches of this district, have considered the instant issue and have concluded the gravel quarries do not fit into the category of exceptional industries cited by the Court in Barlow’s. Marshall v. Halquist Stone Co., Inc., 78-C—463 (E.D.Wis., September 15, 1978); Marshall v. Douglas Dewey, 79-C-114 (March 29, 1979). However, subsequent to these two decisions, two courts of appeals have considered the same issue and have concluded that the inspection provisions of FMSHA are constitutional as applied to sand and gravel plants. Marshall v. Nolichuckey Sand Co., 606 F.2d 693 (6th Cir. 1979); Marshall v. Stoudt’s Ferry Preparation Co., 602 F.2d 589 (3rd Cir. 1979). I have considered each of the four above-cited cases and find the latter two more persuasive. In particular, as these two cases point out, the inspection provisions in FMSHA are more narrowly drawn" }, { "docid": "18907896", "title": "", "text": "warrantless inspection procedure in such a circumstance was constitutionally permissible. The second case which seemed to further limit the Camara and See holdings was United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1932). Biswell extended the Colonnade reasoning to firearms dealers principally upon the notion of implied consent for searches. In Biswell, the petitioner was a pawnshop owner licensed by the federal government to deal with sporting weapons. He was visited by a police officer and a federal government agent who requested permission to enter a locked gun storeroom. The officers had no warrant, and upon the request the petitioner opened the door to the vault. The officers subsequently discovered unauthorized machineguns kept in the vault, guns that were introduced as evidence at his trial. The Biswell Court enunciated a standard against which warrantless inspections must be measured. “. . . [W]here, as here, regulatory inspections further urgent federal interest, and the possibilities of abuse and the threat to privacy are not of impressive dimensions, the inspection may proceed without a warrant where specifically authorized by statute.” United States v. Biswell, supra at 317, 92 S.Ct. at 1597 (emphasis supplied). There were important factors to be considered in balancing the “urgent federal interest” standard against the individual’s expectation of privacy. It was important that in the context of the Gun Control Act, inspection was a crucial part of the regulation of the industry, enforcement of the Act required inspection without a warrant, and, furthermore, the warrant could frustrate the purpose of the inspection. The Colonnade-Biswell line of cases adopted what is essentially a two-tiered level of analysis to test the validity of warrantless administrative searches, absent probable cause to suspect a violation: (1) an urgent federal interest or a pervasively regulated industry must be involved, and (2) the inspection procedures themselves must be reasonable in time, manner and scope. See, United States v. Del Campo Baking Mfg. Co., 345 F.Supp. 1371 (D.Del.1972); Youghiogheny and Ohio Coal Co. v. Morton, 364 F.Supp. 45 (S.D.Ohio 1973); United States ex rel. Terraciano v. Montanye, 493 F.2d 682 (2nd" }, { "docid": "23425529", "title": "", "text": "upon such a business, he has voluntarily chosen to subject himself to a full arsenal of governmental regulation”. Barlow’s, supra, - U.S. at -, 98 S.Ct. at 1821. “The businessman in a regulated industry in effect consents to the restrictions placed upon him”. Almeida-Sanchez v. United States, 413 U.S. 266, 271, 93 S.Ct. 2535, 2538, 37 L.Ed.2d 596 (1973). These principles have not been eroded by the Supreme Court’s recent decision invalidating the administrative search provisions of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 657(a) (1970). Marshall v. Barlow’s Inc., supra. In that case, the Court specifically rejected the argument that its holding “will mean that, as a practical matter, warrantless search provisions in other regulatory statutes are also constitutionally infirm”: The reasonableness of a warrantless search, however, will depend upon the specific enforcement needs and privacy guarantees of each statute. Some of the statutes cited [by the Secretary of Labor] apply only to a single industry, where regulations might already be so pervasive that a Colonnade-Biswell exception to the warrant requirement could apply. - U.S. at-, 98 S.Ct. at 1825. We hold that the administrative search provisions of Section 12 are not facially unconstitutional. The Indiana Supreme Court recently upheld a similar massage parlor search provision for reasons which we find persuasive in the instant case: No criminal prosecutions are authorized for refusal to permit inspection, only the license is affected. Notice would seem to be unreasonable given the ease with which some violations could be concealed. It is a business which is being inspected and one which has a history of regulation, Annot. 17 A.L.R.2d 1183 (1951), albeit not as extensive as the liquor or firearms industries, and as a member of a regulated business, a licensee does impliedly consent to inspections at any and all reasonable times and places by obtaining a license . . . . City of Indianapolis v. Wright, 371 N.E.2d 1298, 1302 (Ind.1978). The only material difference between the ordinance upheld in Wright and the San Antonio ordinance challenged in this case is that the former limited inspections to" }, { "docid": "11443476", "title": "", "text": "heavily regulated industries, liquor and firearms. The Colonnade and Biswell decisions have been inter preted to mean that one who enters those businesses impliedly consents to warrantless inspections because such inspections are essential to the enforcement of the regulatory scheme. Almeida-Sanchez v. United States, 1973, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596. Extending that implied consent concept to our cases, we concluded that “where, as here, the Government validly regulates any business, the Government has a right to include in its regulations the requirement that certain records be kept open to official inspection so that the administrative agency can determine whether the company is complying”. United States v. New Orleans Public Service, Inc., 553 F.2d at 472. Marshall v. Barlow's, Inc. limited the reach of the Colonnade-Biswell exception. In so doing, it may have cast doubt on our use of the implied consent concept we derived from those cases. See generally, Note, Rationalizing Administrative Searches, 77 Mich.L.Rev. 1291, 1315-19 (1979). But that is a question we need not now reach, for Barlow’s presents us with a firmer basis on which to uphold the inspection scheme erected by the regulations here. At issue in Barlow’s was the constitutionality of § 8(a) of the Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. § 657(a), which authorized warrant-less searches of the business premises of employers covered under the Act. The Secretary of Labor, who is charged with enforcing OSHA, argued under Colonnade and Biswell that the employer had impliedly consented to search, and that in any case, warrantless searches were reasonable under the fourth amendment because they were sufficiently restricted by agency regulation and were essential to effective enforcement of the Act. In rejecting both arguments, the Supreme Court stated that OSHA was unconstitutional “insofar as it purports to authorize inspections without a warrant or its equivalent ”. 436 U.S. at 325, 98 S.Ct. at 1827, 56 L.Ed.2d at 319 (emphasis added). We take the italicized words to mean that a formal judicial warrant is not required in all administrative searches if the enforcement procedures contained in the relevant" }, { "docid": "1215753", "title": "", "text": "illegal firearms were found. The Court distinguished Colonnade, concluding that the search in Biswell was not accompanied by forcible entry and was reasonable. However, the Court noted that warrantless inspections of closely regulated businesses must be limited in time, place and scope, and that legality of the search rests not on consent but on the authority of a valid statute. Since regulation of firearms involved important governmental interests and inspection was necessarily a crucial part of the regulatory scheme, the statute authorizing warrantless searches was reasonable under the Fourth Amendment. Finally, in Biswell the Court concluded that the prerequisite of a warrant could easily frustrate inspection, and if necessary flexibility as to time, scope and frequency was to be preserved, any protection afforded by a warrant would be negligible. Compliance with the Gun Control Act posed only limited threats to the dealer’s justifiable expectations of privacy, and dealers choosing to engage in a pervasively regulated business under federal license must do so with the knowledge that their business records, firearms, and ammunition were subject to inspection. In Marshall v. Barlow’s, Inc., 436 U.S. 307, 313, 98 S.Ct. 1816, 1820, 56 L.Ed.2d 305 (1978), the Supreme Court clarified the administrative search exception. The distinguishing element giving rise to the exception in pervasively regulated Biswell businesses or traditionally regulated Colonnade industries, according to the Court, is the awareness and expectation by persons entering such a business that they are subjecting themselves to pervasive government supervision and regulation. Under these conditions, no reasonable expectation of privacy can exist for the proprietor of the enterprise. Id. Citizens “engaged in such federally licensed and regulated enterprises [must] accept the burdens as well as the benefits of their trade.... The businessman in a regulated industry in effect consents to the restrictions placed upon him.” Almeida-Sanchez v. United States, 413 U.S. 266, 271, 93 S.Ct. 2535, 2538, 37 L.Ed.2d 596 (1973). Claimant argues that this search does not fall within the Biswell-Colonnade exception because federal regulation of the fishery zone is a recent development compared to regulation of the industries where warrant-less inspections have been allowed. In" }, { "docid": "1280246", "title": "", "text": "for an administrative search warrant is based upon, and varies according to, “a balancing of (1) the government’s interest or need to search, (2) the nature of the search, (3) the reasonableness of the citizens’ interest in privacy and freedom from governmental intrusion, and (4) the specific facts of each case.” Marshall v. Reinhold Constr., Inc., 441 F.Supp. at 695. See Marshall v. Barlow’s, Inc., 436 U.S. at 320, 98 S.Ct. at 1824, 56 L.Ed.2d at 316; Camara v. Municipal Court of San Francisco, 387 U.S. at 534-39, 87 S.Ct. at 1733, 18 L.Ed.2d at 938-41; See v. Seattle, 387 U.S. at 545, 87 S.Ct. at 1740, 18 L.Ed.2d at 947. . After the Supreme Court’s decisions in United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), and Colonnade-Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), some lower federal courts thought that the mere enactment by Congress of a valid statute purporting to authorize nonconsensual, warrantless, administrative searches and inspections supplied the right of entry that a warrant otherwise provides. More specifically, some lower courts thought that the statute involved in this case, the Food, Drug & Cosmetic Act, 21 U.S.C. § 301 et seq., allowed warrantless, unconsented-to, entries and inspections of regulated establishments on the basis of the Act’s own purported authority, 21 U.S.C. § 374. See United States v. ACRI Wholesale Grocery Co., 409 F.Supp. 529, 533 n. 2 (S.D.Iowa 1976); United States v. Business Builders, Inc., 354 F.Supp. 141, 143 (N.D.Okl.1973); United States v. Del Campo Baking Mfg. Co., 345 F.Supp. 1371, 1374-77 (D.Del.1972). In G. M. Leasing Corp. v. United States, 429 U.S. at 353-54, 356-58, 97 S.Ct. at 628-29, 630-31, 50 L.Ed.2d at 544, 546 — 47, and more recently in Marshall v. Barlow’s, Inc., 436 U.S. at 313-315, 98 S.Ct. at 1821, 56 L.Ed.2d at 312, the Supreme Court expressly made clear that the statutorily authorized “equivalent of a valid search warrant”, Marshall v. Reinhold Constr., Inc., 441 F.Supp. at 693, applies only to “those commercial enterprises that historically, because of their" }, { "docid": "11443475", "title": "", "text": "government is held to that obligation. NOPSI and MP&L of course have not disputed the pervasiveness of the requirement. We conclude that, even absent the disputed regulation, they have accepted the affirmative action obligations contained in E.O. 11246 by dealing with the government. III. Finally, we turn to the issue that prompted the Supreme Court to vacate and remand these cases for reconsideration in light of Marshall v. Barlow’s, Inc., 1978, 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305. In our first decision, we rejected the companies’ contention that the executive order and its regulations violated the fourth amendment because they authorized warrantless searches of the companies’ records. The holding relied heavily on two cases that have created what is now known as the Colonnade-Biswell exception to the warrant requirement. See Colonnade Catering Corp. v. United States, 1970, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 and United States v. Biswell, 1972, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87. Those two cases upheld statutorily authorized, warrantless searches of businesses in two heavily regulated industries, liquor and firearms. The Colonnade and Biswell decisions have been inter preted to mean that one who enters those businesses impliedly consents to warrantless inspections because such inspections are essential to the enforcement of the regulatory scheme. Almeida-Sanchez v. United States, 1973, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596. Extending that implied consent concept to our cases, we concluded that “where, as here, the Government validly regulates any business, the Government has a right to include in its regulations the requirement that certain records be kept open to official inspection so that the administrative agency can determine whether the company is complying”. United States v. New Orleans Public Service, Inc., 553 F.2d at 472. Marshall v. Barlow's, Inc. limited the reach of the Colonnade-Biswell exception. In so doing, it may have cast doubt on our use of the implied consent concept we derived from those cases. See generally, Note, Rationalizing Administrative Searches, 77 Mich.L.Rev. 1291, 1315-19 (1979). But that is a question we need not now reach, for Barlow’s presents" }, { "docid": "15081602", "title": "", "text": "amendment case . . . and thus might be thought a fortiori to call for non-retroactive application.” Beytagh, Ten Years of NonRetroactivity: A Critique and a Proposal, 61 Va.L.Rev. 1557, 1592 (1975). . The inspection in this case occurred on January 6, 1975. The court’s opinion in Brennan v. Buckeye Industries, Inc., 374 F.Supp. 1350 (S.D.Ga.1974), had been entered on April 24, 1974. Subsequent to the inspection in this case, several other courts took an approach contrary to the Buckeye opinion. Some courts took the position that Section 8(a) carried with it an implicit warrant requirement. Marshall v. Reinhold Constr., Inc., 441 F.Supp. 685 (M.D.Fla.1977); Morris v. United States Dep’t of Labor, 439 F.Supp. 1014 (S.D.Ill.1977); Marshall v. Chromalloy Am. Corp., 433 F.Supp. 330 (E.D.Wis.1977). Other tribunals took the view that Section 8(a), or warrantless searches conducted under Section 8(a), violated the Fourth Amendment. Empire Steel Mfg. Co. v. Marshall, 437 F.Supp. 873 (D.Mont.1977); Usery v. Centrif-Air Mach. Co., 424 F.Supp. 959 (N.D.Ga.1977); Barlow’s Inc. v. Usery, 424 F.Supp. 437 (D.Ida.1976), aff'd, 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). For a comprehensive treatment of the state of the law prior to the Supreme Court’s decision in Barlow’s, see Note, Warrantless Non-consensual Searches under the Occupational Safety and Health Act of 1970, 46 Geo.Wash.L. Rev. 93 (1977). Our opinion in In re Carlson, 580 F.2d 1365, 1378-81 (10th Cir. 1978) discusses “probable cause” issues in the OSHA context in light of the Barlow’s decision. . Barlow’s was a case of first impression. It extended Fourth Amendment protections into a new area by declaring unconstitutional a Congressional enactment — which enactment had been relied on by OSHA personnel as they conducted administrative inspections. Barlow’s also clarified the relationship between Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), and such apparently narrowing decisions as United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) and Colonnade Catering Corp. v. United States, 397 U.S. 72," }, { "docid": "1280247", "title": "", "text": "of entry that a warrant otherwise provides. More specifically, some lower courts thought that the statute involved in this case, the Food, Drug & Cosmetic Act, 21 U.S.C. § 301 et seq., allowed warrantless, unconsented-to, entries and inspections of regulated establishments on the basis of the Act’s own purported authority, 21 U.S.C. § 374. See United States v. ACRI Wholesale Grocery Co., 409 F.Supp. 529, 533 n. 2 (S.D.Iowa 1976); United States v. Business Builders, Inc., 354 F.Supp. 141, 143 (N.D.Okl.1973); United States v. Del Campo Baking Mfg. Co., 345 F.Supp. 1371, 1374-77 (D.Del.1972). In G. M. Leasing Corp. v. United States, 429 U.S. at 353-54, 356-58, 97 S.Ct. at 628-29, 630-31, 50 L.Ed.2d at 544, 546 — 47, and more recently in Marshall v. Barlow’s, Inc., 436 U.S. at 313-315, 98 S.Ct. at 1821, 56 L.Ed.2d at 312, the Supreme Court expressly made clear that the statutorily authorized “equivalent of a valid search warrant”, Marshall v. Reinhold Constr., Inc., 441 F.Supp. at 693, applies only to “those commercial enterprises that historically, because of their special nature, have been subject to extensive federal regulation or licensing,” since “anyone who voluntarily participates in such a business consents to the Congressionally authorized warrantless searches.” Id. Otherwise, the Fourth Amendment requirement, that a valid search warrant be obtained before an administrative inspection can be conducted over the denial of entry, is controlling. Id.; Empire Steel Mfg. Co. v. Marshall, 437 F.Supp. 873, 877-880 (D.Mont.1977); Usery v. CentrifAir Machine Co., 424 F.Supp. 959, 961-62 (N.D. Ga.1977); Dunlop v. Hertzler Enterprises, Inc., 418 F.Supp. 627, 631-34 (D.N.M.1976). Additionally, it must be noted that some lower courts never veered from the Fourth Amendment’s requirement of valid search warrants in order to conduct administrative inspections, even under the Food, Drug & Cosmetic Act. United States v. Litvin, 353 F.Supp. 1333, 1338 (D.D.C.1973); United States v. Kendall Co., 324 F.Supp. 628, 630 (D.Mass.1971). Cf. United States v. Thriñimart, Inc., 429 F.2d 1006, 1010 (9th Cir. 1970)." }, { "docid": "16688106", "title": "", "text": "searches. It is also settled that Sink’s mine is subject to federal regulation. The only remaining issue is whether the warrantless inspections authorized by § 813(a) violate Sink’s fourth amendment right to be free from unreasonable searches. In Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), the Supreme Court, affirming the general rule that warrantless searches are unreasonable, held that warrantless inspections to enforce the Occupational Safety and Health Act of 1970 violate the fourth amendment. See also Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (building code); See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967) (fire code). Barlow’s recognized exceptions to this general rule. It affirmed the validity of warrantless searches of premises occupied by businesses that historically have been subject to pervasive governmental regulation. Persons engaging in such businesses have no reasonable expectation of privacy. 436 U.S. at 313, 98 S.Ct. 1816. See, e. g., United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (firearms); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) (liquor). In addition, the Court responded to the argument that requiring warrants for OSHA inspections would invalidate warrantless inspections under all other regulatory schemes by explaining, 436 U.S. at 321, 98 S.Ct. at 1825, that: The reasonableness of a warrantless search, however, will depend upon the specific enforcement needs and privacy guarantees of each statute. Some of the statutes cited apply only to a single industry, where regulations might already be so pervasive that a Colonnade-Biswell exception to the warrant requirement could apply. Some statutes already envision resort to federal-court enforcement when entry is refused, employing specific language in some cases . As an illustration of such statutes, the Court referred to 30 U.S.C. § 818, the enforcement provision of the 1977 Mine Safety Act, which is the jurisdictional basis of this proceeding. 436 U.S. at 321-22 n.18, 98 S.Ct. 1816. Clearly, the validity of a warrantless inspection of Sink’s mine depends on whether Barlow’s" }, { "docid": "22003219", "title": "", "text": "determining whether to apply the “closely-regulated industry” exception the Supreme Court in Barlow’s emphasized the pervasiveness of the regulation in a given industry and whether, in view of that pervasiveness, a businessman can be deemed to have im pliedly consented to a search by entering the industry in the first instance. 436 U.S. at 313-314, 98 S.Ct. 1816. However, the Court proceeded to consider the effect of a warrant requirement on the enforcement of OSHA and the “unbridled discretion” that OSHA’s warrantless search requirement ceded to administrative officials. We conclude that Barlow's mandates that lower courts examine several factors in determining the reasonableness of a warrantless search under a particular statutory scheme, and balance those factors carefully in reaching its conclusion. See generally The Constitutionality of Warrantless OSHA Inspections, 22 Vill.L.Rev. 1214 (1977). In considering the factors set forth in Biswell and Barlow's as applied to the problem at hand, we emphasize first the lengthy history of pervasive regulation in the coal mine industry, particularly in the area of safety. The coal mine industry has been regulated since the early part of this century; inspections have been authorized since 1940. In Youghiogheny & Ohio Coal Co. v. Morton, 364 F.Supp. 45 (S.D.Ohio 1973) (three-judge court), the court, after a detailed discussion of the history of regulation in the coal mine industry, concluded that coal mining was a closely regulated industry within the Colonnade-Biswell exception. We agree. Although the history of regulation may not be so long as in the alcohol or firearm industries, we believe that the history of regulation in the coal mine industry is sufficiently extensive so that anyone entering the field would be aware of the extent of the regulation and would have little justifiable expectation of privacy with respect to safety regulation. Second, we note that the regulatory scheme here covers a single industry, in contrast to the wide-ranging scheme contained in OSHA covering all industries which affect commerce. Marshall v. Barlow's, supra, 436 U.S. at 314, 98 S.Ct. 1816. The significance of this narrow focus lies in the increased possibility that a businessman engaged in" }, { "docid": "22399020", "title": "", "text": "action in federal court to obtain an injunction against future refusals. 30 U. S. C. § 818 (a) (1976 ed., Supp. III). This proceeding provides an adequate forum for the mineowner to show that a specific search is outside the federal regulatory authority, or to seek from the district court an order accommodating any unusual privacy interests that the mineowner might have. See, e. g., Marshall v. Stoudt’s Ferry Preparation Co., 602 F. 2d 589, 594 (CA3 1979) (inspectors ordered to keep confidential mine's trade secrets), cert. denied, 444 U. S. 1015 (1980). Under these circumstances, it is difficult to see what additional protection a warrant requirement would provide. The Act itself clearly notifies the operator that inspections will be performed on a regular basis. Moreover, the Act and the regulations issued pursuant to it inform the operator of what health and safety standards must be met in order to be in compliance with the statute. The discretion of Government officials to determine what facilities to search and what violations to search for is thus directly curtailed by the regulatory scheme. In addition, the statute itself embodies a means by which any special Fourth Amendment interests can be accommodated. Accordingly, we conclude that the general program of warrantless inspections authorized by § 103 (a) of the Act does not violate the Fourth Amendment. Appellees contend, however, that even if § 103 (a) is constitutional as applied to most segments of the mining industry, it nonetheless violates the Fourth Amendment as applied to authorize warrantless inspections of stone quarries. Appel-lees’ argument essentially tracks the reasoning of the court below. That court, while expressly acknowledging our decisions in Colonnade and Biswell, found the exception to the warrant requirement defined in those cases to be inapplicable solely because surface quarries, which came under federal regulation in 1966, do “not have a long tradition of government regulation.” 493 F. Supp., at 964. To be sure, in Colonnade this Court referred to “the long history of the regulation of the liquor industry,” 397 U. S., at 75, and more recently in Marshall v. Barlow’s, Inc.," }, { "docid": "18907897", "title": "", "text": "a warrant where specifically authorized by statute.” United States v. Biswell, supra at 317, 92 S.Ct. at 1597 (emphasis supplied). There were important factors to be considered in balancing the “urgent federal interest” standard against the individual’s expectation of privacy. It was important that in the context of the Gun Control Act, inspection was a crucial part of the regulation of the industry, enforcement of the Act required inspection without a warrant, and, furthermore, the warrant could frustrate the purpose of the inspection. The Colonnade-Biswell line of cases adopted what is essentially a two-tiered level of analysis to test the validity of warrantless administrative searches, absent probable cause to suspect a violation: (1) an urgent federal interest or a pervasively regulated industry must be involved, and (2) the inspection procedures themselves must be reasonable in time, manner and scope. See, United States v. Del Campo Baking Mfg. Co., 345 F.Supp. 1371 (D.Del.1972); Youghiogheny and Ohio Coal Co. v. Morton, 364 F.Supp. 45 (S.D.Ohio 1973); United States ex rel. Terraciano v. Montanye, 493 F.2d 682 (2nd Cir. 1974), cert. denied 419 U.S. 475, 95 S.Ct. 137,42 L.Ed.2d 114 (1974). Doubts about the applicability and continued viability of the Camara-See line of cases, as well as the parameters set by the Colonnade-Biswell line of cases, were set to rest in the case of Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). There the Court invalidated a warrantless search by the Roving Patrol of the Immigration and Naturalization Service. The Almeida-Sanchez Court strongly implied that Camara and See are good law and furthermore distinguished the Colonnade-Biswell line of cases. “A central difference between those cases and this one is that businessmen engaged in such federally licensed and regulated enterprises accept the burdens as well as the benefits of their trade, whereas the petitioner here was not engaged in any regulated or licensed business. The businessman in a regulated industry in effect consents to the restrictions placed upon him.” Almeida-Sanchez v. United States, supra at 271, 93 S.Ct. at 2538. In 1974 the Supreme Court expressly reaffirmed See" }, { "docid": "23425528", "title": "", "text": "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, 528-29, 87 S.Ct. 1727, 1731, 18 L.Ed.2d 930 (1967), a principle which applies to private commercial as well as residential property. See v. City of Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 1739, 18 L.Ed.2d 943 (1967). Exempted from the administrative search warrant requirement are industries having “such a history of [pervasive regulation] that no reasonable expectation of privacy . . . could exist-for a proprietor over the stock of such an enterprise”. Marshall v. Barlow’s, Inc.,-U.S.-,-, 98 S.Ct. 1816, 1821, 56 L.Ed.2d 305 (1978). This “carefully defined\" class of industries has been held to include liquor, Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), and firearms, United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972). In such cases, a warrant is not required because “[w]hen an entrepreneur embarks upon such a business, he has voluntarily chosen to subject himself to a full arsenal of governmental regulation”. Barlow’s, supra, - U.S. at -, 98 S.Ct. at 1821. “The businessman in a regulated industry in effect consents to the restrictions placed upon him”. Almeida-Sanchez v. United States, 413 U.S. 266, 271, 93 S.Ct. 2535, 2538, 37 L.Ed.2d 596 (1973). These principles have not been eroded by the Supreme Court’s recent decision invalidating the administrative search provisions of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 657(a) (1970). Marshall v. Barlow’s Inc., supra. In that case, the Court specifically rejected the argument that its holding “will mean that, as a practical matter, warrantless search provisions in other regulatory statutes are also constitutionally infirm”: The reasonableness of a warrantless search, however, will depend upon the specific enforcement needs and privacy guarantees of each statute. Some of the statutes cited [by the Secretary of Labor] apply only to a single industry, where regulations might already be so pervasive that a Colonnade-Biswell exception to the warrant" } ]

[ { "docid": "2833272", "title": "", "text": "States, 398 F.2d 531, 542 (5th Cir. 1968) (order denying petition for rehearing). The trial judge’s erroneous submission to the jury of the issue of Rosen’s guilt on the substantive count and the giving of the Pinkerton charge undoubtedly influenced the jury’s finding of Rosen’s guilt on the conspiracy charge. We conclude that the errors with respect to the substantive count so tainted Rosen’s conspiracy conviction that we must also reverse that count. III. Cantone’s Appeal Cantone contends that the testimony of one Herbst concerning the cashing of twin double checks in January 1966 was inadmissible because the evidence directly relating to the conspiracy fails to show that it continued after the spring of 1965. The government argues that Herbst’s testimony itself shows the continuation of the conspiracy. The fact that the government did not offer proof of the conspiracy’s continued existence at regular intervals during the period charged does not require a finding that it had ended, absent some affirmative act of withdrawal by Can-tone. See e. g., Hyde v. United States, 225 U.S. 347, 369, 32 S.Ct. 793, 56 L.Ed. 1114 (1912); United States v. Borelli, 336 F.2d 376, 388-390 (2d Cir. 1964), cert. denied sub nom. Mogavero v. United States, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965). It was not error for the trial judge to declare one of the government’s witnesses to be a hostile witness and allow him to be cross-examined on the basis of a prior affidavit. Cantone’s other assignments of error are not persuasive. We affirm his conviction. Reversed as to Rosen. Affirmed as to Cantone. . 26 U.S.C. § 7206(2) provides: “§ 7206. Fraud and false statements. “Any person who— * * * * * “(2) Aid or assistance. “Willfully aids or assists in, or procures, counsels, or advises the preparation or presentation under, or in connection with any matter arising under, the internal revenue laws, of a return, affidavit, claim, or other document, which is fraudulent or is false as to any material matter, whether or not such falsity or fraud is with the knowledge or consent of" } ]

[ { "docid": "2499885", "title": "", "text": "claim that he or she withdrew from a plot”). A defendant must: (1) take affirmative action to show that he has truly broken with that part of the criminal enterprise to which he agreed to participate; and (2) communicate his abandonment to his co-conspirators. See, e.g., United States v. Borelli, 336 F.2d 376, 387-388 (2d Cir.1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965); see also, Wayne R. LaFave and Austin W. Scott, Jr., Criminal Law § 62, at 486 (1972)(similar tests for withdrawal are used by most courts). The defendant has generally been held to have the burden of proving withdrawal. See, e.g., United States v. Borelli, 336 F.2d 376, 390 (2d Cir.1964). But see Ware v. United States, 154 F. 577 (8th Cir.), cert. denied, 207 U.S. 588 28 S.Ct. 255, 52, U.Ed. 353 (1907)(traditional rule was that the prosecution had burden to prove that defendant had not withdrawn). It is not clear what must be shown to meet this burden of withdrawal. See, e.g., United States v. Goldberg, 401 F.2d 644, 648 (2d Cir.1968), cert. denied, 393 U.S. 1099, 89 S.Ct. 895, 21 L.Ed.2d 790 (1969)(“the burden of establishing an effective withdrawal from a conspiracy rests upon the defendant” and once proved it entitles him to an acquittal “as a matter of law”); see also United States v. James, 609 F.2d 36, 41 (2d Cir.1979), cert. denied, 445 U.S. 905, 100 S.Ct. 1082, 63 L.Ed.2d 321 (1980)(“burden of proof of withdrawal rests on the defendant”). One court, treating the rule as one of a presumption, has said that with the introduction of some evidence of withdrawal, the defense has met its burden of production and the government resumes the burden of persuasion on the ultimate issue of withdrawal. See United States v. Read, 658 F.2d 1225, 1236 (7th Cir.1980). After the withdrawal issue has been raised by defendant’s proof, Read explained, the government must prove beyond a reasonable doubt that the defendant had not withdrawn from the conspiracy. Read, 658 F.2d 1225, 1236 (7th Cir.1980)(the government bears burden of disproving defense beyond a" }, { "docid": "23194839", "title": "", "text": "the indictment on which he was tried. Accordingly, he takes exception to the district court’s failure either to direct an acquittal or to charge the jury with respect to the statute of limitations defense. Moreover, if larossi’s membership in the conspiracy ceased in early 1970, his sentencing as a second narcotics offender under 21 U.S.C. § 851 would be ex post facto because the statute was not enacted until October 27, 1970. We conclude, however, that there was no basis in the record for submitting the issue of withdrawal to the jury. Unless a conspirator produces affirmative evidence of withdrawal, his participation in a conspiracy is presumed to continue until the last overt act by any of the conspirators. Hyde v. United States, 225 U.S. 347, 369, 32 S.Ct. 793, 56 L.Ed. 1114 (1912); United States v. Schwenoha, 383 F.2d 395, 396-97 (2d Cir. 1967), cert. denied, 390 U.S. 904, 88 S.Ct. 817, 19 L.Ed.2d 869 (1968). The testimony of Manfredonia about his own cessation of activities in early 1970 did not satisfy this burden of production for Iarossi. Of course, evidence that Iarossi had been incarcerated since April 1970 would have been enough to make his withdrawal a jury issue, see United States v. Borelli, 336 F.2d 376, 389 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965), but Iarossi’s counsel chose — apparently for tactical reasons — not to put the fact of this imprisonment before the jury. Consequently, Iarossi’s membership in the conspiracy is presumed to have continued thereafter. Because Manfredonia did testify that Iarossi was “out of it” when Manfredonia resumed dealing in October or November 1970, there may have been a jury issue as to termination of Iarossi’s participation at that time. But that was too late to be relevant to Iarossi’s statute of limitations claim. In his unsuccessful request for a withdrawal instruction counsel for Iarossi did not mention that the precise date of withdrawal might bear on the possibility that sentencing as a second narcotics offender would be retroactive; we believe this omission precluded Iarossi from raising" }, { "docid": "23207335", "title": "", "text": "e. g., United States v. Landry, 257 F.2d 425, 429-30 (7th Cir. 1958) (entrapment); . United States v. Wolffs, 594 F. 77, 80 (5th Cir. 1979) (entrapment); United States v. Booz, 451 F.2d 719, 723 (3d Cir. 1971) (alibi); United States v. Corrigan, 548 F.2d 879, 882 (10th Cir. 1977) (self-defense); United States v. Sennett, 505 F.2d 774, 778 (7th Cir. 1974) (insanity). . Dropping out during the limitations period does not absolve a defendant. He is still liable for the agreement and acts committed before he withdraws. Since a continuing conspiracy is alleged as one crime, he is also liable in effect for the crimes of his co-conspirators even after his withdrawal. Severance is not ordinarily justified because the circumstances usually provide sufficient basis for joinder under the rules of criminal procedure. . See, e. g., United States v. Bradsby, 628 F.2d 901, 905 (5th Cir. 1980); United States v. Jimenez, 622 F.2d 753, 757 (5th Cir. 1980); United States v. Krasn, 614 F.2d 1229, 1236 (9th Cir. 1980) (court rejected defendant’s claim that he does not bear burden); United States v. Boyd, 610 F.2d 521, 528 (8th Cir. 1978), cert. denied, 444 U.S. 1089, 100 S.Ct. 1052, 62 L.Ed.2d 777 (1980); United States v. James, 609 F.2d 36, 41 (2d Cir. 1979), cert. denied, 445 U.S. 905, 100 S.Ct. 1082, 63 L.Ed.2d 321 (1980); United States v. Gillen, 599 F.2d 541, 548 (3d Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 137, 62 L.Ed.2d 89 (1979); United States v. Parnell, 581 F.2d 1374, 1384 (10th Cir. 1978), cert. denied, 439 U.S. 1076, 99 S.Ct. 852, 59 L.Ed.2d 44 (1979); United States v. Pearson, 508 F.2d 595, 597 (5th Cir.), cert. denied, 423 U.S. 845, 96 S.Ct. 82, 46 L.Ed.2d 66 (1975); United States v. Heckman, 479 F.2d 726, 729 (3d Cir. 1973). Seventh Circuit cases are collected in n.6 infra. One Second Circuit case, United States v. Panebianco, 543 F.2d 447, 453 (2d Cir. 1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1128, 51 L.Ed.2d 553 (1977), referred in passing to defendant’s “burden of production,” but without explanation." }, { "docid": "3727750", "title": "", "text": "“shown or ... implied,” Grunewald, 353 U.S. at 406, 77 S.Ct. at 974, that there was “an express original agreement among the conspirators to continue to act in concert in order to cover up, for their own self-protection traces of the crime____” is an issue for trial. Id. at 404, 77 S.Ct. at 974; Young & Rubicam, 741 F.Supp. at 343. The Statute of Limitations Motion is denied on this ground. To the extent Cannistraro challenges Count Two because he has been incarcerated since 1987, his argument is without merit. As discussed, a co-conspirator remains liable until the object of the conspiracy is accomplished regardless of whether he or she participated in the last predicate acts. Persico, 832 F.2d at 713. Arrest or incarceration alone does not terminate a co-conspirators participation in a conspiracy. Gatto, 746 F.Supp. at 463. It is the burden of the defendant to prove withdrawal from a conspiracy. United States v. Gillen, 599 F.2d 541, 548 (3d Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 137, 62 L.Ed.2d 89 (1979); see also Gatto, 746 F.Supp. at 463. The defendant must show “[ajffirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach co-conspirators____” United States v. United States Gypsum Co., 438 U.S. 422, 464, 98 S.Ct. 2864, 2887, 57 L.Ed.2d 854 (1978). The Circuit stated withdrawal is typically shown by a full confession to the authorities or a communication to his or her co-conspirators that the defendant has abandoned the goals of the conspiracy. Steele, 685 F.2d at 803-04; see also United States v. Rosa, 891 F.2d 1063, 1069 (3d Cir.1989); United States v. De Pen, 778 F.2d 963, 980 (3d Cir.1985), cert. denied sub nom. Pede v. United States, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916 (1986); United States v. Toth, 776 F.Supp. 1030, 1033 n. 3 (E.D.Pa.1991). Although Cannistraro has been incarcerated for the past five years, during which time the conspiracy allegedly continued, he has presented no evidence which suggests he has withdrawn from the conspiracy. To the extent he based the motion to" }, { "docid": "23207336", "title": "", "text": "he does not bear burden); United States v. Boyd, 610 F.2d 521, 528 (8th Cir. 1978), cert. denied, 444 U.S. 1089, 100 S.Ct. 1052, 62 L.Ed.2d 777 (1980); United States v. James, 609 F.2d 36, 41 (2d Cir. 1979), cert. denied, 445 U.S. 905, 100 S.Ct. 1082, 63 L.Ed.2d 321 (1980); United States v. Gillen, 599 F.2d 541, 548 (3d Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 137, 62 L.Ed.2d 89 (1979); United States v. Parnell, 581 F.2d 1374, 1384 (10th Cir. 1978), cert. denied, 439 U.S. 1076, 99 S.Ct. 852, 59 L.Ed.2d 44 (1979); United States v. Pearson, 508 F.2d 595, 597 (5th Cir.), cert. denied, 423 U.S. 845, 96 S.Ct. 82, 46 L.Ed.2d 66 (1975); United States v. Heckman, 479 F.2d 726, 729 (3d Cir. 1973). Seventh Circuit cases are collected in n.6 infra. One Second Circuit case, United States v. Panebianco, 543 F.2d 447, 453 (2d Cir. 1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1128, 51 L.Ed.2d 553 (1977), referred in passing to defendant’s “burden of production,” but without explanation. . United States v. D’Andrea, 585 F.2d 1351, 1355 n.3 (7th Cir. 1978), cert. denied, 440 U.S. 983, 99 S.Ct. 1795, 60 L.Ed.2d 244 (1979), and United States v. Dorn, 561 F.2d 1252, 1256 (7th Cir. 1977), rely on United States v. Borelli, 336 F.2d 376, 388 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965). Borelli cited United States v. Cohen, 145 F.2d 82, 90 (2d Cir. 1944), cert. denied, 323 U.S. 799, 65 S.Ct. 553, 89 L.Ed. 637 (1945). Cohen relied in part on United States v. Perlstein, 126 F.2d 789, 798 (3d Cir.), cert. denied, 316 U.S. 678, 62 S.Ct. 1106, 86 L.Ed. 1752 (1942), which states only the presumption that the conspiracy continued. Perlstein cites Marino v. United States, 91 F.2d 691, 695 (9th Cir. 1937), cert. denied, 302 U.S. 764, 58 S.Ct. 410, 82 L.Ed. 593 (1938), and Coates v. United States, 59 F.2d 173, 174 (9th Cir. 1932), which, as discussed earlier, rely on Hyde. United States v. Bastone, 526 F.2d 971, 988" }, { "docid": "272815", "title": "", "text": "in furtherance of the conspiracy” are not hearsay. Walker contends that Rule 801(d)(2)(E) is not applicable because the statements in the letter and papers were not made during the course and in furtherance of the conspiracy. He argues that the conspiracy terminated in April 1982 after he passed the final set of defense documents to John Walker, while the letter and papers related to John Walker’s espionage activities in May 1985, over three years after the termination of the conspiracy. Once a conspiracy is established, however, it is presumed to continue unless or until the defendant shows that it was terminated or he withdrew from it. Hyde v. United States, 225 U.S. 347, 369-70, 32 S.Ct. 793, 803, 56 L.Ed. 1114 (1912). A mere cessation of activity in furtherance of the conspiracy is insufficient. United States v. Goldberg, 401 F.2d 644, 648 (2d Cir.1968), cert. denied, 393 U.S. 1099, 89 S.Ct. 895, 21 L.Ed.2d 790 (1969). The defendant must show affirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach his co-conspirators. United States v. United States Gypsum Co., 438 U.S. 422, 464-65, 98 S.Ct. 2864, 2887-88, 57 L.Ed.2d 854 (1978). The burden of proving withdrawal rests on the defendant. United States v. Gillen, 599 F.2d 541, 548 (3d Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 137, 62 L.Ed.2d 89 (1979). In the instant case, Arthur Walker failed to introduce any evidence tending to show his withdrawal from the conspiracy. In fact, he told the FBI that in May 1984 he had agreed to provide John Walker with any information he obtained relating to the United States’ defense condition. Six months before John Walker’s arrest, he told John Walker that he could provide information concerning the scheduling of Navy ships for overhauls. The district court correctly ruled that the letter and papers were relevant evidence admissible under Rule 801(d)(2)(E). VI. Walker’s final challenge is upon the sufficiency of the evidence underlying his convictions. He contends that the Government’s evidence was insufficient to prove: that the Damage Control Book and CAS REP" }, { "docid": "23207337", "title": "", "text": ". United States v. D’Andrea, 585 F.2d 1351, 1355 n.3 (7th Cir. 1978), cert. denied, 440 U.S. 983, 99 S.Ct. 1795, 60 L.Ed.2d 244 (1979), and United States v. Dorn, 561 F.2d 1252, 1256 (7th Cir. 1977), rely on United States v. Borelli, 336 F.2d 376, 388 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965). Borelli cited United States v. Cohen, 145 F.2d 82, 90 (2d Cir. 1944), cert. denied, 323 U.S. 799, 65 S.Ct. 553, 89 L.Ed. 637 (1945). Cohen relied in part on United States v. Perlstein, 126 F.2d 789, 798 (3d Cir.), cert. denied, 316 U.S. 678, 62 S.Ct. 1106, 86 L.Ed. 1752 (1942), which states only the presumption that the conspiracy continued. Perlstein cites Marino v. United States, 91 F.2d 691, 695 (9th Cir. 1937), cert. denied, 302 U.S. 764, 58 S.Ct. 410, 82 L.Ed. 593 (1938), and Coates v. United States, 59 F.2d 173, 174 (9th Cir. 1932), which, as discussed earlier, rely on Hyde. United States v. Bastone, 526 F.2d 971, 988 (7th Cir. 1975), cert. denied, 425 U.S. 973, 96 S.Ct. 2172, 48 L.Ed.2d 797 (1976), in affirming an “if you find” instruction on withdrawal, cited United States v. Cirillo, 468 F.2d 1233, 1239 (2d Cir. 1972), cert. denied, 410 U.S. 989, 93 S.Ct. 1501, 36 L.Ed.2d 188 (1973); United States v. Chester, 407 F.2d 53, 55 (3d Cir.), cert. denied, 394 U.S. 1020, 89 S.Ct. 1642, 23 L.Ed.2d 45 (1969); and Hyde. Cirillo cites United States v. Cianchetti, 315 F.2d 584, 589 (2d Cir. 1963), and United States v. Stromberg, 268 F.2d 256, 263 (2d Cir.), cert. denied, 361 U.S. 863, 80 S.Ct. 119, 4 L.Ed.2d 102 (1959), which rely on Cohen, Marino, and Hyde. None of these cases discuss the burden of proof. Chester cites Hyde and Deacon v. United States, 124 F.2d 352, 358 (1st Cir. 1941). Deacon endorsed an “if you find” instruction without reference to the burden of proof, citing Hyde; Stephens v. United States, 41 F.2d 440, 448 (9th Cir.), cert. denied, 282 U.S. 880, 51 S.Ct. 83, 75 L.Ed." }, { "docid": "23207340", "title": "", "text": "Cir. 1977), and parts of United States v. D’Andrea, 585 F.2d 1351, 1355 n.3 (7th Cir. 1978), cert. denied, 440 U.S. 983, 99 S.Ct. 1795, 60 L.Ed.2d 244 (1979); United States v. Bastone, 526 F.2d 971, 988 (7th Cir. 1975), cert. denied, 425 U.S. 973, 96 S.Ct. 2172, 48 L.Ed.2d 797 (1976). . The type of evidence necessary to create a jury question on withdrawal is not at all affected by our ruling. See United States v. United States Gypsum Co., 438 U.S. 422, 463-65, 98 S.Ct. 2864, 2886-87, 57 L.Ed.2d 854 (1978), and Instruction 5.12 of the Federal Criminal Jury Instructions of the Seventh Circuit. See also United States v. Lowell, 649 F.2d 950 (3d Cir. 1981). To avoid all liability, the defendant must come forward with evidence that he withdrew prior to the statute of limitations. The import of our decision is that the showing is only one of production, not persuasion. . Spiegel tendered an instruction stating: “Once evidence is introduced which tends to show that a defendant withdrew from a conspiracy or scheme, then the government must prove beyond a reasonable doubt that such defendant did not in fact withdraw.” The trial court refused the instruction, stating, “I have already told them what the burden of proof is. The government has the burden of proof on every issue of this case.” Tr. 5524. See also tr. 5526. . Instruction 6.01 provides: To sustain the charge of _ the government must prove the following propositions: First: Second: Third: Fourth: (Negating any issues raised by an affirmative defense, e. g., insanity, self-defense.) If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty. If, on the other hand, you find from your consideration of all of the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty. Instruction 6.01, “Issues in the Case and Burden of Proof.” Committee on Federal Criminal Jury Instructions of the Seventh Circuit, Federal" }, { "docid": "23207339", "title": "", "text": "777 (1930); and Mansfield v. United States, 76 F.2d 224, 229-30 (8th Cir.), cert. denied, 296 U.S. 601, 56 S.Ct. 117, 80 L.Ed. 425 (1935). Stephens cited Hyde in holding that the defendant failed to “disavow or otherwise do what was requisite to set in motion the statute of limitations.” 41 F.2d at 449. Mansfield, as we discussed at pages 1234-1235, supra, correctly stated the law. Bastone, then, is the clearest example of the law being turned on its head over forty years. United States v. Nowak, 448 F.2d 134, 139 (7th Cir. 1971), cert. denied, 404 U.S. 1039, 92 S.Ct. 714, 30 L.Ed.2d 731 (1972), cited Hyde, United States v. Beck, 118 F.2d 178, 184-85 (7th Cir.), cert. denied, 313 U.S. 587, 61 S.Ct. 1121, 85 L.Ed. 1542 (1941), and Blue v. United States, 138 F.2d 351, 360 (6th Cir. 1943), cert. denied, 322 U.S. 736-37, 64 S.Ct. 1046, 88 L.Ed. 1570 (1944). Beck and Blue relied only on Hyde for the withdrawal issue. . United States v. Dorn, 561 F.2d 1252, 1256 (7th Cir. 1977), and parts of United States v. D’Andrea, 585 F.2d 1351, 1355 n.3 (7th Cir. 1978), cert. denied, 440 U.S. 983, 99 S.Ct. 1795, 60 L.Ed.2d 244 (1979); United States v. Bastone, 526 F.2d 971, 988 (7th Cir. 1975), cert. denied, 425 U.S. 973, 96 S.Ct. 2172, 48 L.Ed.2d 797 (1976). . The type of evidence necessary to create a jury question on withdrawal is not at all affected by our ruling. See United States v. United States Gypsum Co., 438 U.S. 422, 463-65, 98 S.Ct. 2864, 2886-87, 57 L.Ed.2d 854 (1978), and Instruction 5.12 of the Federal Criminal Jury Instructions of the Seventh Circuit. See also United States v. Lowell, 649 F.2d 950 (3d Cir. 1981). To avoid all liability, the defendant must come forward with evidence that he withdrew prior to the statute of limitations. The import of our decision is that the showing is only one of production, not persuasion. . Spiegel tendered an instruction stating: “Once evidence is introduced which tends to show that a defendant withdrew from a conspiracy" }, { "docid": "22761143", "title": "", "text": "affirmative acts inconsistent with the object of the conspiracy and communicated this in a manner reasonably calculated to reach his or her coconspirators). The burden of proving withdrawal from a conspiracy rests upon the defendant. United States v. Bradsby, [628 F.2d 901, 905 (5th Cir. 1980)]. United States v. Killian, 639 F.2d 206, 209 (5th Cir. 1981); see Hyde v. United States, 225 U.S. 347, 369, 32 S.Ct. 793, 803, 56 L.Ed. 1114 (1912); United States v. Pearson, 508 F.2d 595, 597 (5th Cir.), cert. denied, 423 U.S. 845, 96 S.Ct. 82, 46 L.Ed.2d 66 (1975); United States v. James, 609 F.2d 36, 41-42 (2d Cir. 1979), cert. denied, 445 U.S. 905, 100 S.Ct. 1082, 63 L.Ed.2d 321 (1980); United States v. Dorn, 561 F.2d 1252, 1256 (7th Cir. 1977). Mere cessation of activity in furtherance of the conspiracy does not constitute withdrawal. See Hyde v. United States, supra, 225 U.S. at 369, 32 S.Ct. at 803; United States v. Continental Group, Inc., 603 F.2d 444, 467 (3d Cir. 1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 703, 62 L.Ed.2d 668 (1980). The statement by Jiminez on cross-examination that in September 1977 Myers broke off relations completely with Platshom and Meinster does not establish as a matter of law that Myers withdrew. The evidence as a whole demonstrates that Myers did not cease his enterprise activities in totality in September 1977. Myers’ claim that a new and separate conspiracy was formed after his withdrawal is not supported by the record. The record reflects that a single Black Tuna enterprise conspiracy spanned the entire period covered by the indictment. Even if we agreed that Myers withdrew from the conspiracy in September 1977, we discern no compelling prejudice suffered by Myers as a result of his joinder. The abundant evidence of events occurring before September 1977 and before the PRESIDENTIAL incident clearly implicated Myers in the Black Tuna conspiracy. Myers’ contention that he was prejudiced by the disparity in the quantity of evidence against him as contrasted with that offered against other defendants is based upon the fact that he was named" }, { "docid": "8370609", "title": "", "text": "court. . 18 U.S.C. § 844(i). The parties stipulated to the interstate commerce element of the statute. . Heckman, Heiney, and Rundle were each sentenced to indeterminate prison terms under 18 U.S.C. § 5010(b) until release under § 5017(c). Vito was committed to' the custody of the Attorney General for a period of three years, six months to be served in a jail-type institution, and the remaining time to be placed on probation. . Heckman, Heiney, and Bundle filed a joint brief in which this concession was made. Vito filed a separate brief and argues not that the government failed to prove the existence of a criminal conspiracy, but that the evidence was insufficient to show his connection to any conspiracy that may have existed. . See Developments in the Law—Criminal Conspiracy, 72 Harv.D.Rev. 920, 957-60 (1959). . United States v. Borelli, 336 F.2d 376, 388 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965), quoting Hyde v. United States, 225 U.S. 347, 369, 32 S.Ct. 793, 56 L.Ed. 1114 (1912). . United States v. DeCavalcante, 440 F.2d 1264, 1273 (3d Cir. 1971); United States v. Weiss, 431 F.2d 1402, 1407 (10th Cir. 1970). . 468 F.2d 257 (3d Cir. 1972) (en banc). . Id. at 259. . Id. at 259-60. . United States v. Coben, 197 F.2d 26 (3d Cir. 1954); accord United States v. Weber, 437 F.2d 327, 336-37 (3d Cir. 1970), cert. denied, 402 U.S. 932, 91 S.Ct. 1524, 28 L.Ed.2d 867 (1971). . Accord United States v. Hensley, 374 F.2d 341 (6th Cir.), cert. denied, 388 U.S. 923, 87 S.Ct. 2139, 18 L.Ed. 1373 (1967); United States v. Cianchetti, 315 F.2d 584 (2d Cir. 1963); see United States v. Franklin, 429 F.2d 274 (8th Cir.), cert. denied, 400 U.S. 967, 91 S.Ct. 380, 27 L.Ed. 387 (1970). But see United States v. Gramolini, 301 F.Supp. 39 (D.R.I.1969)." }, { "docid": "15130947", "title": "", "text": "(11th Cir.), cert. denied, 484 U.S. 948, 108 S.Ct. 338, 98 L.Ed.2d 365 (1987); United States v. Walker, 796 F.2d 43, 49 (4th Cir.1986); United States v. Borelli, 336 F.2d 376, 388 (2d Cir.1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965). The defendants ask us to re-examine our decisions in light of a Seventh Circuit case, United States v. Read, 658 F.2d 1225 (7th Cir.1981), in which the court overruled prior circuit precedent placing the burden on the defendant. The Read court concluded that earlier panel decisions were based on a misinterpretation of Hyde v. United States, 225 U.S. 347, 369, 32 S.Ct. 793, 802, 56 L.Ed. 1114 (1912). The court then examined the defense of withdrawal, concluding that because “withdrawal negates the essential element of membership [in the conspiracy], it must be disproved beyond a reasonable doubt by the government.” Read, 658 F.2d at 1236. The court, however, emphasized that the burden of going forward with the evidence is on the defendant. Id. at 1233; see also United States v. Buckley, 586 F.2d 498, 501 (5th Cir.1978) (stating that the defendant must provide “some evidence, but more than a scintilla” to be entitled to an instruction on an affirmative defense), cert. denied, 440 U.S. 982, 99 S.Ct. 1792, 60 L.Ed.2d 242 (1979). This is all interesting but the defendants were not entitled to any withdrawal instruction because the issue was not sufficiently raised. To prove withdrawal the defendant must show “[ajffirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach co-conspirators.” United States v. United States Gypsum Co., 438 U.S. 422, 464-65, 98 S.Ct. 2864, 2887-88, 57 L.Ed.2d 854 (1978). MMR’s decision to not submit a bid was hardly inconsistent with the object of the conspiracy for the reasons we have earlier given. VIII. In his opening statement, counsel for Rutland told the jury to “please focus on the fact that Mr. Rutland is charged with what somebody else did_ The evidence is going to show that the only company charged in the Big Cajun job" }, { "docid": "15046299", "title": "", "text": "indictment went to trial together. The charges against Charles Colson were dropped upon his guilty plea in another case, and the case against Gordon Strachan was severed and ultimately dismissed. The jury then found Parkinson not guilty of the crimes charged against him. . Had Mardian withdrawn, the declarations of co-conspirators uttered after the date of his withdrawal would not be admissible against him. See Lutwak v. United States, 344 U.S. 604, 617-618, 73 S.Ct. 481, 97 L.Ed. 593 (1953). But withdrawal requires “either the making of a clean breast to the authorities, * * * or communication of the abandonment in a manner reasonably calculated to reach co-conspirators.” United States v. Borelli, 336 F.2d 376, 388 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965). See Hyde v. United States, 225 U.S. 347, 369, 32 S.Ct. 793, 56 L.Ed. 1114 (1912). Mardian’s actions do not satisfy this test. Cf. United States v. Nowak, 448 F.2d 134, 139 (7th Cir. 1971), cert. denied, 404 U.S. 1039, 92 S.Ct. 714, 30 L.Ed.2d 731 (1972) (resigning as lawyer did not constitute withdrawal from conspiracy). . In light of our disposition of the case, we need not determine the admissibility of these references since the question, if it arises on retrial, will appear in a vastly different setting. Even if some references are technically admissible under various exceptions to the hearsay rule, the court is still called upon to exclude evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury * * Rule 403, Fed.R.Evid. When Mardian is retried singly, the major focus will be on the period of June and July of 1972. Without the need to introduce evidence against other defendants, the balance between relevance and prejudice of statements made in March and April of 1973 may be substantially altered. . Mardian did raise many of the same points in a motion for a new trial filed Jan. 16, 1975. JA 839-845. The court denied the motion. JA 868-869, United States v. Mitchell," }, { "docid": "22411251", "title": "", "text": "point and continued as late as June 2001, within the five years preceding the return of the indictment in January 2006. Thus, Green’s assertion that evidence of threats he endured from his coconspirators is sufficient to establish his withdrawal from the conspiracy and his abandonment of its objectives as a matter of law is misplaced. This court has explained: Once a conspiracy is established, however, it is presumed to continue unless or until the defendant shows that it was terminated or he withdrew from it. Hyde v. United States, 225 U.S. 347, 369-70, 32 S.Ct. 793, 803, 56 L.Ed. 1114 (1912). A mere cessation of activity in furtherance of the conspiracy is insuffi dent. United States v. Goldberg, 401 F.2d 644, 648 (2d Cir.1968), cert. denied, 393 U.S. 1099, 89 S.Ct. 895, 21 L.Ed.2d 790 (1969). The defendant must show affirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach his coconspirators. United States v. United States Gypsum Co., 438 U.S. 422, 464-65, 98 S.Ct. 2864, 2887-88, 57 L.Ed.2d 854 (1978). The burden of proving withdrawal rests on the defendant. United States v. Gillen, 599 F.2d 541, 548 (3d Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 137, 62 L.Ed.2d 89 (1979). United States v. Walker, 796 F.2d 43, 49 (4th Cir.1986) (emphasis added); see also United States v. Bennett, 984 F.2d 597, 609 (4th Cir.) (“Once it is proven that a defendant was a member of the conspiracy, the defendant’s membership in the conspiracy is presumed to continue until he withdraws from the conspiracy by affirmative action.”), cert. denied, 508 U.S. 945, 113 S.Ct. 2428, 124 L.Ed.2d 649 (1993) (quoting United States v. West, 877 F.2d 281, 289 (4th Cir.1989)). The evidence before the district court did not remotely satisfy the Walker standard for withdrawal. In sum, we conclude that the district court did not err in rejecting Green’s suggestion that the evidence of his 1998/1999 “expulsion” from the drug conspiracy constitutes a “withdrawal” from the conspiracy. The record evidence shows that Green may have been temporarily inactive as a result" }, { "docid": "9772307", "title": "", "text": "least as early as October 28, 1970. See United States v. Indiviglio, 352 F.2d 276 (2d Cir. 1965), cert, denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966). Appellants elected to battle it out with their own expert evidence to the contrary. Absent a timely objection to the competency of the Government’s witness, the weight of the experts’ testimony was for the jury. United States v. Stifel, 433 F.2d 431 (6th Cir. 1970), cert, denied, 401 U.S. 994, 91 S.Ct. 1232, 28 L.Ed.2d 531 (1971); United States v. Kelly, 420 F.2d 26, 28 (2d Cir. 1969). The last point raised, on appellant Cipo’s behalf, is that he withdrew from the conspiracy on April 17, 1967, when he invoked his Fifth Amendment privilege and refused to testify before the SEC. Thus, the argument runs, any testimony before the SEC thereafter and at trial relating to any time after April 17,1967, was erroneously admitted. Suffice it to say we agree with the trial court’s conclusion that assertion of the privilege “is a neutral act from which no inferences can be drawn.” It is not the “affirmative action” required by Hyde v. United States, 225 U.S. 347, 369, 32 S.Ct. 793, 56 L.Ed. 1114 (1912); see also United States v. Borelli, 336 F.2d 376, 388 (2d Cir. 1964), cert, denied sub nom. Cinquegrano v. United States, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965). While assertion of the privilege may not, of course, be considered to have furthered the concealment, it was not inconsistent with continuation of the concealment and certainly did not constitute withdrawal from the conspiracy. United States v. Borelli, supra, 336 F.2d at 389. No request to leave the issue of withdrawal to the jury was made; it is therefore unnecessary for us to consider the complexities of a charge which would refer to invoking the Fifth Amendment on the one hand and not be prejudicial to the defendant on the other. Cf. Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Judgment affirmed. . Grunewald v. United States, 353" }, { "docid": "22761142", "title": "", "text": "as a result of the PRESIDENTIAL fiasco, Myers broke off relations with Meinster and Platshorn in September 1977. However, the relations between Myers and Meinster and Platshorn soon resumed. In December 1977 Myers contacted Meinster and Platshorn by phone and mediated a financial dispute between them and Echezarreta. Furthermore, Myers ignores the testimony given earlier by Jiminez on direct examination that in December 1977, Myers asked him (Jiminez) if he could produce a bogus mortgage for property owned by the Green Turtle Construction Company. Jiminez testified that that property had been purchased by Meinster, Platshorn and Myers. This Court recently addressed a defendant’s claim of withdrawal from a conspiracy: In order to withdraw, a conspirator must show that he acted affirmatively to defeat or disavow the purpose of the conspiracy. United States v. Wentland, 582 F.2d 1022, 1025-26 (5th Cir. 1978), cert. denied, 439 U.S. 1133, 99 S.Ct. 1056, 59 L.Ed.2d 96 (1979). See also United States v. Jimenez, 622 F.2d 753, 755 (5th Cir. 1980) (to show withdrawal, defendant must demonstrate that he took affirmative acts inconsistent with the object of the conspiracy and communicated this in a manner reasonably calculated to reach his or her coconspirators). The burden of proving withdrawal from a conspiracy rests upon the defendant. United States v. Bradsby, [628 F.2d 901, 905 (5th Cir. 1980)]. United States v. Killian, 639 F.2d 206, 209 (5th Cir. 1981); see Hyde v. United States, 225 U.S. 347, 369, 32 S.Ct. 793, 803, 56 L.Ed. 1114 (1912); United States v. Pearson, 508 F.2d 595, 597 (5th Cir.), cert. denied, 423 U.S. 845, 96 S.Ct. 82, 46 L.Ed.2d 66 (1975); United States v. James, 609 F.2d 36, 41-42 (2d Cir. 1979), cert. denied, 445 U.S. 905, 100 S.Ct. 1082, 63 L.Ed.2d 321 (1980); United States v. Dorn, 561 F.2d 1252, 1256 (7th Cir. 1977). Mere cessation of activity in furtherance of the conspiracy does not constitute withdrawal. See Hyde v. United States, supra, 225 U.S. at 369, 32 S.Ct. at 803; United States v. Continental Group, Inc., 603 F.2d 444, 467 (3d Cir. 1979), cert. denied, 444 U.S. 1032," }, { "docid": "15768708", "title": "", "text": "a defendant, who at first apparently cooperated with his or its competitors in the fixing of prices, resumed competitive activity by December 21, 1974, then he or it has effectively withdrawn from the conspiracy charged. As the government points out, however, the appellants’ proffered charge is misleading. The existence of some competitive activity among alleged coconspirators is not sufficient to negate the existence of an illegal conspiracy. See, e. g., United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 225 n.59, 60 S.Ct. 811, 84 L.Ed. 1129 (1940); In re Yarn Processing Patent Validity Litigation, 541 F.2d 1127, 1136-37 (5th Cir. 1976); Plymouth Dealers’ Association v. United States, 279 F.2d 128,132 (9th Cir. 1960). By contrast, in United States v. United States Gypsum Co., 550 F.2d 115, 130 n.15 (3d Cir. 1977), aff'd, 438 U.S. 422, 98 S.Ct. 52, 54 L.Ed.2d 71 (1978), the defendants requested an instruction that resumption of competitive behavior “could” constitute an effective withdrawal. Because the instruction requested in this case was imprecise, the district court was entitled to reject it. See, e. g., United States v. American Radiator & Standard Sanitary Corp., supra, at 199. Nevertheless, appellants argue that the district court’s instruction that “[m]ere cessation of activity in furtherance of the conspiracy is not sufficient to establish withdrawal” prevented the jury from considering resumption of competitive activity at all. We do not agree. The district court’s statement of the law in this regard is quite correct. See United States v. Heckman, 479 F.2d 726, 729 (3d Cir. 1973) (quoting United States v. Borelli, 336 F.2d 376, 388 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965)). Moreover, we believe that withdrawal through resumption of competitive activity constitutes something more than “mere cessation of activity in furtherance of the conspiracy.” Finally, appellants contend that the district court erroneously refused to instruct the jury that withdrawal could be demonstrated by circumstantial evidence. They argue that because the district court specifically charged the jury that a conspiracy could be inferred from circumstantial evidence, they were entitled to “the other side of" }, { "docid": "907958", "title": "", "text": "read as simply saying: “ ‘An agreement among competitors to rig bids is illegal.’ ” United States v. Brighton Building & Maintenance Co., 598 F.2d 1101, 1106 (7th Cir.), cert. denied, 444 U.S. 840, 100 S.Ct. 79, 62 L.Ed.2d 52 (1979). Since the Sherman Act does not make “unreasonableness” part of the offense, it cannot be said that the judicially-created per se mechanism relieves the government of its duty of proving each element of a criminal offense under the Act. We note that every other circuit court which has confronted this issue has arrived at the same conclusion. United States v. Society of Independent Gasoline Marketers, 624 F.2d 461 (4th Cir. 1980), cert. denied, 449 U.S. 1078, 101 S.Ct. 859, 66 L.Ed.2d 801 (1981); United States v. Continental Group, Inc., 603 F.2d 444 (3d Cir. 1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 703, 62 L.Ed.2d 668 (1980); United States v. Gillen, 599 F.2d 541 (3d Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 137, 62 L.Ed.2d 89 (1979); United States v. Brighton Building & Maintenance Co., supra. Notwithstanding this settled law, which is rationally based and consistent with the language of the Act, Koppers argues that other Supreme Court decisions, Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952); United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978); Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), have in effect put an end to criminal prosecutions for per se violations. We disagree. The decisions relied upon by Koppers are clearly distinguishable from Socony-Vacu-um and the present case. United States v. United States Gypsum Co., supra, grew out of an indictment charging six major manufacturers of gypsum board with fixing prices by exchanging price information in violation of the Sherman Act. The defendants argued that their actions were undertaken for the purpose of complying with the “meeting competition” provision of the Robinson-Patman Act. 15 U.S.C. § 13. The jury was not required by the district court to find that the defendants intended to" }, { "docid": "15046298", "title": "", "text": "in any event undisputed that the burglars all had prior CIA connections, and that they were all carrying false identifications supplied by the CIA at the time of their arrests. . Rule 14 provides in relevant part: If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. * * * . The Government argues, citing United States v. Wilson, 140 U.S.App.D.C. 220, 228 & n. 15, 434 F.2d 494, 502 & n. 15 (1970), that Kelly applies only where “incriminating evidence that was inadmissible against the appellant was admitted against a co-defendant.” Id. Even if Kelly is thus limited, here Mardian claims he was subjected to such evidence. See note 6 infra and accompanying text. . As explained in our Haldeman opinion, only five of the original seven named in the indictment went to trial together. The charges against Charles Colson were dropped upon his guilty plea in another case, and the case against Gordon Strachan was severed and ultimately dismissed. The jury then found Parkinson not guilty of the crimes charged against him. . Had Mardian withdrawn, the declarations of co-conspirators uttered after the date of his withdrawal would not be admissible against him. See Lutwak v. United States, 344 U.S. 604, 617-618, 73 S.Ct. 481, 97 L.Ed. 593 (1953). But withdrawal requires “either the making of a clean breast to the authorities, * * * or communication of the abandonment in a manner reasonably calculated to reach co-conspirators.” United States v. Borelli, 336 F.2d 376, 388 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965). See Hyde v. United States, 225 U.S. 347, 369, 32 S.Ct. 793, 56 L.Ed. 1114 (1912). Mardian’s actions do not satisfy this test. Cf. United States v. Nowak, 448 F.2d 134, 139 (7th Cir. 1971), cert. denied, 404 U.S. 1039, 92 S.Ct. 714," }, { "docid": "5789204", "title": "", "text": "803-04 (emphasis added); see also United States v. Heckman, 479 F.2d 726, 729 (3d Cir.1973). Of course, there is no single way withdrawal can be established; in large part whether a particular action constitutes withdrawal depends on context. Thus, the Supreme Court has cautioned against placing “confining blinders” on the jury’s consideration of evidence of withdrawal and has held that “[ajffirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach co-conspirators have generally been regarded as sufficient to establish withdrawal or abandonment.” United States v. United States Gypsum Co., 438 U.S. 422, 464-65, 98 S.Ct. 2864, 2887, 57 L.Ed.2d 854 (1978). We have divided the standard for showing withdrawal into two stages. First, the defendant must come forward with evidence evincing a prima facie showing of withdrawal. If the defendant makes this prima facie showing, the burden then shifts to the government to rebut the prima facie case, “either by impeaching the defendant’s proof or by going forward with evidence of some conduct in furtherance of the conspiracy subsequent to the act of withdrawal.” United States v. Local 560, 974 F.2d 315, 338 (3d Cir.1992) (citing Steele, 685 F.2d at 804). This case poses the question of when retirement or resignation from an enterprise constitutes withdrawal from a conspiracy utilizing that enterprise. We have had a number of occasions to write about such sitúa-' tions, and those cases assist us in articulating a standard. In United States v. Gillen, 599 F.2d 541 (3d Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 137, 62 L.Ed.2d 89 (1979), the defendant argued that the burden shifted to the government to disprove withdrawal after he established that he “began removing himself [from the enterprise] except for labor negotiations and his efforts to sell the company.” Id. at 547-48. We disagreed, noting that “[t]he burden is ... on the defendant to prove ‘(a)ffirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach co-conspirators.’ ” Id. at 548 (citing United States Gypsum Co., 438 U.S. at 464, 98 S.Ct. at" } ]

[ { "docid": "1131653", "title": "", "text": "a motion to reconsider citing case law, Code section or Rules filed. III. Jurisdiction. This Court has jurisdiction over the parties and subject matter of these actions pursuant to 28 U.S.C. § 1334. These are core proceedings within the meaning of 28 U.S.C. § 157(b)(2)(A). 7F. Applicable Law. When examining attorneys’ fees 11 U.S.C. § 330, Compensation of Officers, governs. That Code section states: (a) After notice to any parties in interest and to the United States trustee and a hearing, subject to sections 326, 328 and 329 of this title, the Court may award to a trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title, or to the debtor’s attorney— (1) reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, or attorney, as the case may be, and by any paraprofessional persons employed by such trustee, professional person, or attorney as the case may be, based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and (2)reimbursement for actual, necessary expenses. The court has an obligation to examine the propriety of fees and expenses requested even if no objections are raised. In re Bush, 131 B.R. 364 (Bankr.W.D.Mich. 1991); and In re Mayes, 101 B.R. 494 (Bankr.W.D.Mich. 1988). This is neither a new nor novel concept. See Jordan v. Mark IV Hair Styles, Inc., 806 F.2d 695 (6th Cir.1986) (fees in a civil rights class action); In re S.T.N. Enterprises, Inc., 70 B.R. 823, 831 (Bankr.D.Vt.1987); In re Evans Products Co., 69 B.R. 68, 69 (Bankr. S.D.Fla.1986); In re NRG Resources, Inc., 64 B.R. 643, 650 (W.D.La.1986); In re Wilson Foods Corp., 36 B.R. 317, 320 (Bankr. W.D.Okla.1984); and In re Hamilton Hardware Co., Inc., 11 B.R. 326, 329 (Bankr.E.D.Mich.1981). As the Honorable Robert Holmes Bell recognized in Solomon v. Wein (In re Huhn), 145 B.R. 872 (W.D.Mich.1992): The bankruptcy court must make an independent review of the fee petition. The court has the responsibility" } ]

[ { "docid": "11504579", "title": "", "text": "manner as any other element essential to the granting of relief notwithstanding the absence or flaccidity of opposition. A bankruptcy court has an affirmative duty to examine the propriety of fees and expenses even where no objections are raised. See In Matter of Ferkauf, Inc., 42 B.R. 852, 853 (Bankr.S.D.N.Y.1984), aff'd, 56 B.R. 774 (S.D.N.Y.1985) (a bankruptcy court is “duty bound thoroughly to review fee applications, sua sponte, in order to determine whether the compensation requested is reasonable”); In re Copeland, 154 B.R. 693, 697 (Bankr.W.D.Mich.1993) (“[t]he court has an obligation to examine the propriety of fees and expenses requested even if no objections are raised.”); accord, In re J.F. Wagner’s Sons Co., 135 B.R. 264, 266 (Bankr.W.D.Ky.1991); In re Esar Ventures, 62 B.R. 204, 205 (Bankr.D.Haw.1986). Thus, the fact that no objections to the reasonableness of the fees requested have been raised in this case, is of consequence only to the extent that we are required to undertake the unperformed obligations which Congress has imposed upon the trustee and upon the U.S. Trustee. Their failure to fulfill their statutory obligation does not excuse us from fulfilling ours. The burden of proving that services were actual and necessary and that the compensation sought is reasonable is on the Applicant. In re Beverly Mfg. Corp., 841 F.2d 365 (11th Cir.1988); In re U.S. Golf Corp., 639 F.2d 1197, 1207 (5th Cir.1981); In re Navis Realty, Inc., 126 B.R. 137, 145 (Bankr.E.D.N.Y.1991). “This burden is not to be taken lightly, as every dollar expended on professional fees results in a dollar less that is available for distribution to creditors.” In re Gillett Holdings, 137 B.R. 462, 466 (Bankr.D.Colo.1992) (quoting, In re Chicago Lutheran Hospital Ass’n, 89 B.R. 719, 732 (Bankr.N.D.Ill.1988)); see also In re Huhn, 145 B.R. 872, 874 (W.D.Mich.1992) (“The bankruptcy court must make an independent review of the fee petition. The court has the responsibility for avoiding waste of estate assets and preventing overreaching by attorneys in their attempts to be paid attorneys’ fee from the estate.”). In this regard, 11 U.S.C. § 330(a) is implemented by Fed.R.Bankr.P. 2016(a) which" }, { "docid": "3720081", "title": "", "text": "analysis required from a bankruptcy court when considering professional fees under 11 U.S.C. § 330. See Nelson v. Mickelson (In re Pfleghaar), 215 B.R. 394 (8th Cir. BAP 1997); Chamberlain v. Kula (In re Kula), 213 B.R. 729 (8th Cir. BAP 1997). On appeal, we review the bankruptcy court’s findings of fact, whether based upon oral or documentary evidence, for clear error, and its legal conclusions are reviewed de novo. Fed.R.Bankr.P. 8013; First Nat’l Bank of Olathe v. Pontow, 111 F.3d 604, 609 (8th Cir.1997). Decisions regarding an award of fees are subject to the abuse of discretion standard. Grunewaldt v. Mutual Life Ins. Co. (In re Coones Ranch, Inc.), 7 F.3d 740, 744 (8th Cir.1993). An abuse of discretion occurs in this context “if the bankruptcy judge fails to apply the proper legal standard, fails to follow proper procedures in making the determination, or bases an award upon findings of fact that are clearly erroneous.” Agate Holdings, Inc. v. Ceresota Mill L.P. (In re Ceresota Mill L.P.), 211 B.R. 315, 317 (8th Cir. BAP 1997). To be clearly erroneous, after reviewing the record, we must be left with the definite and firm impression that a mistake has been committed. In re Waugh, 95 F.3d 706, 711 (8th Cir.1996). Finally, our review is limited in deference to the bankruptcy judge’s familiarity with the work performed by the professional. In re Grady, 618 F.2d 19, 20 (8th Cir.1980). See Kula, at 735. DISCUSSION Section 330 governs allowance of attorney’s fees and states, in pertinent part: (a)(1) After notice to the parties in interest and the United States Trustee and a hearing, and subject to sections 326, 328, and 329, the court may award to a trustee, an examiner, a professional person employed under section 327 or 1103— (A) reasonable compensation for actual, necessary services rendered by the trustee, examiner, professional person, or attorney and by any paraprofessional person employed by any such person; and (B) reimbursement for actual, necessary expenses. Subsection (a)(2) permits the court, on its own motion or on the motion of the a trustee or other party in" }, { "docid": "18803612", "title": "", "text": "at $.20). The court will treat the June 28, 1991 letter as a timely filed motion to alter or amend the June 20, 1991 confirmation order awarding attorney’s fees pursuant to Federal Rule of Bankruptcy Procedure 9023(e). This court has jurisdiction over counsel and the subject matter of this action pursuant to 28 U.S.C. Section 1334, and this is a core proceeding within the meaning of 28 U.S.C. Section 157(b)(2)(A). 11 U.S.C. Section 330, Compensation of Officers, provides the guidelines for the court’s determination as to the allowance of fees and expenses to attorneys. That section states: (a) After notice to any parties in interest and to the United States trustee and a hearing, and subject to sections 326, 328 and 329 of this title, the Court may award to a trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title or to the debtors attorney- (1) reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, or attorney, as the case may be, and by any paraprofessional persons employed by such trustee, professional person, or attorney, as the case may be, based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. The court has an obligation to examine the propriety of fees and expenses requested even if no objections are raised. In re Mayes, 101 B.R. 494 (Bkrtcy.W.D.Mich.1988). See Jordan v. Mark IV Hair Styles, Inc., 806 F.2d 695 (6th Cir.1986) fees in a civil rights class action; In re S.T.N. Enterprises, Inc., 70 B.R. 823, 831 (Bkrtcy.D.Vt.1987); In re Evans Products Co., 69 B.R. 68, 69 (Bkrtcy.S.D.Fla.1986); In re NRG Resources, Inc., 64 B.R. 643, 650 (Bkrtcy.S.D.N.Y.1986); In re Wilson Foods Corp., 36 B.R. 317, 320 (Bkrtcy.W.D.Okla.1984); and In re Hamilton Hardware Co., Inc., 11 B.R. 326, 329 (Bkrtcy.E.D.Mich.1981). This obligation is especially important in a Chapter 13 case where a debtor has neither inclination nor motivation to object" }, { "docid": "13175686", "title": "", "text": "waited a year to seek to be retained and seven months after completing services to apply for fees and expenses). The court may award fees to professional persons retained under section 327 pursuant to section 330 of the Bankruptcy Code. 11 U.S.C. § 330. Section 330 provides in relevant part: After notice to the parties in interest and the United States Trustee and a hearing, and subject to sections 326, 328 and 329, the court may award ... (A) reasonable compensation for actual, necessary services rendered by the trustee, examiner, ombudsman, professional person, or attorney and by any paraprofessional person employed by an such person; and (B) reimbursement for actual, necessary expenses. 11 U.S.C. § 330(a)(1). In determining reasonable compensation, section 330 directs the court to consider: (A) the time spent on such services; (B) the rates charged for such services; (C) whether the services were necessary to the administration of, or beneficial at the time which the service was rendered toward the completion of, a case under this title; (D) whether the services were performed within a reasonable amount of time commensurate with the complexity, importance and nature of the problem issue, or task addressed; (E) with respect to a professional person, whether the person is board certified or otherwise has demonstrated skill and experience in the bankruptcy field; and (F) whether the compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in cases other than cases under this title. 11 U.S.C. § 330(a)(3). The Court has an independent duty to review fee applications and evaluate the compensation requested. In re Keene, 205 B.R. 690, 695 (Bankr.S.D.N.Y.1997). See also Dery v. Cumberland Cas. & Sur. Co. (In re 5900 Assocs. Inc.), 468 F.3d 326, 331 (6th Cir.2006) (Finding debtor not insolvent for purposes of fraudulent conveyance statute because attorney’s claim for services rendered during prior bankruptcy would be unenforceable: “[a]s an attorney appointed under 11 U.S.C. § 327, [the attorney] was required to seek approval of his fees from the court under 11 U.S.C. § 330. Because he did not do so, his fees [from" }, { "docid": "7654684", "title": "", "text": "730.00 C. Successful defense of discharge complaint brought by creditor. 87.236 6,214.40 D. Partially successful defense of exemption objections. 38.42 2,706.20 E. Draft of pleadings in response to exemption rulings, appearance at selected exemption hearings and research of miscellaneous issues. 4.08 290.60 TOTAL PEES REQUESTED 12,376.55 EXPENSE REIMBURSEMENT REQUESTED 280.54 TOTAL FEES AND EXPENSES REQUESTED 12,657.09 Less amounts previously paid by debtors 3,000.00 NET PEES AND REIMBURSEMENT REQUESTED $9,657.09 A long discussion of the standards for awarding fees under the Bankruptcy Code is not required. See In re First Colonial Corp. of America, 544 F.2d 1291 (5th Cir.1977); In re Sapolin Paints, Inc., 38 B.R. 807 (Bankr.E.D.N.Y.1984); In re Werth, 32 B.R. 442 (Bankr.Colo.1983). Debtors’ counsel may be compensated from the estate under 11 U.S.C.A. § 330 (West 1984): (a) After notice and a hearing, and subject to sections 326, 328, and 329 of this title, the court may award to a trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title, or to the debtor’s attorney— (1) reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, or attorney, as the case may be, and by any paraprofessional persons employed by such trustee, professional person, or attorney, as the case may be, based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. The leading case in this circuit regarding fee awards for debtors’ attorneys is Cle-ware Industries v. Sokolsky, 493 F.2d 863 (6th Cir.1974). As enumerated therein (in the context of a reorganization case), the services which are normally compensable from the estate include the following: [T]he preparation and filing of the schedules and statement of affairs, the petition for arrangement and all other applications and orders which were required except those relating to the operation of the business; appearances on behalf of the debtor in court proceedings; attendance at meetings of creditors to consider the proposed arrangement; preparation of" }, { "docid": "18735569", "title": "", "text": "§ 330. Compensation of officers (a) After notice to any parties in interest and to the United States trustee and a hearing, and subject to sections 326, 328, and 329 of this title, the court may award to a trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title, or to the debtor’s attorney— (1) reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, or attorney, as the case may be, and by any paraprofessional person employed by such trustee, professional person, or attorney, as the case may be, based on the time, the nature, the extent, and the value of such services and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. (b) There shall be paid from the filing fee in a case under chapter 7 of this title $20 to the trustee serving in such case, after such trustee’s services are rendered. 11 U.S.C. § 330 (1982). Section 330 was amended slightly in 1984. See Pub.L. No. 98-353, §§ 433, 434, 98 Stat. 333 (1984). . In this case, Luce, Forward’s fee applications totalled more than 400 typewritten pages describing in detail the services rendered by some 40 attorneys and paralegals over a six-month period; these services involved approximately 6,500 hours of professional time. The preparation and presentation of the fee applications themselves involved more than 200 hours of professional and paraprofessional time. . We note that bankruptcy courts are increasingly willing to award compensation for time devoted to the preparation and presentation of attorneys’ fee applications pursuant to § 330(a) of the Bankruptcy Reform Act. See, e.g., In re Bible Deliverance Evangelistic Church, 39 B.R. 768, 774 (Bankr.E.D.Pa.1984); In re Rego Crescent Corp., 37 B.R. 1000, 1008, 1011 (Bankr.E.D.N.Y.1984); In re United Rockwool, 32 B.R. 558, 561-62 (Bankr.E.D.Va. 1983); In re G.A.C. Corp., 14 B.R. 252, 255 (Bankr.S.D.Fla.1981); In re Warrior Drilling & Engineering Co., 9 B.R. 841, 848-49 (Bankr.N.D.Ala.), modified on other grounds, 18 B.R. 684 (N.D.Ala.1981). .We recognize that certain expenses, such" }, { "docid": "12594809", "title": "", "text": "and expenses are at issue in this case. Before the court is the firm’s first application for Chapter 7 attorney fees and expenses, in which it seeks payment of the fees from the retainer. ISSUE Does the 1994 amendment to 11 U.S.C. § 330, which deleted Chapter 7 debtors’ counsel from the list of entities authorized to receive an award of compensation from the estate, preclude an attorney for a Chapter 7 debtor from being paid for postpetition services and expenses from a prepetition retainer? DISCUSSION 1. Can a Chapter 7 debtor’s attorney be awarded compensation under 11 U.S.C. § SSO? Bankruptcy Code section 330 authorizes an award of compensation from property of the estate for an attorney’s services and reimbursement for expenses. Subsection (a) provides, as relevant: (a)(1) After notice to the parties in interest and the United States trustee and a hearing, and subject to sections 326, 328, and 329, the court may award to a trustee, an examiner, a professional person employed under section 327 or 1103— (A) reasonable compensation for actual, necessary services rendered by the trustee, examiner, professional person, or attorney and by any paraprofessional person employed by any such person; and (B) reimbursement for actual, necessary expenses. Section 330 does not authorize an award of a Chapter 7 debtor’s postpetition attorney fees from property of the estate. In re Fassinger, 191 B.R. 864 (Bankr.D.Or.1996). Because a prepetition retainer is an asset of the ' Chapter 7 estate, see In re Friedland, 182 B.R. 576 (Bankr.D.Colo.1995), the UST argues that a Chapter 7 debtor’s attorney cannot be paid from that retainer. The firm argues first that the holding in Fassinger is inconsistent with the legislative intent and that I should reconsider whether section 330 applies to Chapter 7 debtors’ postpetition attorney fees. In Fassinger, the court considered the 1994 amendments to section 330, which deleted the Chapter 7 debtor’s attorney from the list of professionals authorized to receive compensation from the estate. The court noted that it “may only award fees to the debtor’s attorney to the extent it is authorized to do so by" }, { "docid": "8686931", "title": "", "text": "those services that were performed after January 22, 2002. B. Employment under § 327 At the hearing on the Applications, however, all of the Creditors requested the nunc pro tunc approval of their employment by the estate. Generally, professional persons who are employed by the trustee pursuant to § 327 of the Bankruptcy Code may be awarded reasonable compensation for their services pursuant to § 330 of the Bankruptcy Code. Section 327(a) provides: 11 U.S.C. § 327. Employment of professional persons (a) Except as otherwise provided in this section, the trustee, with the court’s approval, may employ one or more attorneys, accountants, appraisers, auctioneers, or other professional persons, that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the trustee in carrying out the trustee’s duties under this title. 11 U.S.C. § 327(a)(Emphasis supplied). Section 330(a)(1) provides: 11 U.S.C. § 330. Compensation of officers (a)(1) After notice to the parties in interest and the United States Trustee and a hearing, and subject to sections 326, 328, and 329, the court may award to a trustee, an examiner, a professional person employed under section 327 or 1103— (A) reasonable compensation for actual, necessary services rendered by the trustee, examiner, professional person, or attorney and by any paraprofessional person employed by any such person; and (B) reimbursement for actual, necessary expenses. 11 U.S.C. § 330(a)(Emphasis supplied). The combined effect of these statutes is to authorize an award of compensation to professionals who have been employed by the trustee, and whose employment has been approved by the Court. As a general rule, however, professional persons are not entitled to any compensation for postpetition services if they did not obtain prior approval of their employment from the Court. In re Keller Financial Services of Florida, Inc., 248 B.R. 859 (Bankr.M.D.Fla.2000)(quoting In re Monument Auto Detail, Inc., 226 B.R. 219 (9th Cir. BAP 1998) and In re W.T. Mayfield Sons Trucking Co., Inc., 225 B.R. 818 (Bankr.N.D.Ga.1998)). See also In re Stoico Restaurant Group, Inc., 271 B.R. 655 (Bankr.D.Kan.2002). C. Retroactive approval In this" }, { "docid": "11504578", "title": "", "text": "there exists a burden of proof. Evidentiary facts properly placed before the court to demonstrate entitlement to each item of relief sought are no less essential in a hearing to fix fees than they would be in the most heavily contested of trials. The starting point in any determination regarding fee applications is 11 U.S.C. § 330(a) which provides in relevant part: (a) After notice ... and a hearing ... the court may award ... to the debtor’s attorney— (1) reasonable compensation for actual, necessary services rendered by such ... attorney ... and by any paraprofessional persons employed by such ... attorney ... based on the nature, the extent and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. 11 U.S.C. § 330(a). Since 11 U.S.C. § 330(a) only authorizes this Court to award compensation and reimbursement for actual and necessary services and expenses, their existence must be established in the same manner as any other element essential to the granting of relief notwithstanding the absence or flaccidity of opposition. A bankruptcy court has an affirmative duty to examine the propriety of fees and expenses even where no objections are raised. See In Matter of Ferkauf, Inc., 42 B.R. 852, 853 (Bankr.S.D.N.Y.1984), aff'd, 56 B.R. 774 (S.D.N.Y.1985) (a bankruptcy court is “duty bound thoroughly to review fee applications, sua sponte, in order to determine whether the compensation requested is reasonable”); In re Copeland, 154 B.R. 693, 697 (Bankr.W.D.Mich.1993) (“[t]he court has an obligation to examine the propriety of fees and expenses requested even if no objections are raised.”); accord, In re J.F. Wagner’s Sons Co., 135 B.R. 264, 266 (Bankr.W.D.Ky.1991); In re Esar Ventures, 62 B.R. 204, 205 (Bankr.D.Haw.1986). Thus, the fact that no objections to the reasonableness of the fees requested have been raised in this case, is of consequence only to the extent that we are required to undertake the unperformed obligations which Congress has imposed upon the trustee and upon the U.S. Trustee. Their" }, { "docid": "8853754", "title": "", "text": "which provides as follows: § 330. Compensation of officers. (a) After notice to any parties in interest and to the United States trustee and a hearing, and subject to sections 326, 328, and 329 of this title, the court may award to a trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title, or to the debtor’s attorney— (1) reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, or attorney, as the case may be, and by any paraprofessional persons employed by such trustee, professional person or attorney, as the case may be, based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. 11 U.S.C. § 330(a)(1) and (2). Pursuant to Section 330 of the Bankruptcy Code, all professionals applying for fees must demonstrate that their services were actual, necessary and reasonable. The legislative history of section 330 expressly notes the Court’s correlative duty to closely examine the reasonableness and necessity of the fees incurred. Bankruptcy Rule 2016(a) in turn requires that “[a]n entity seeking interim or final compensation for services, or reimbursement of necessary expenses, from the estate shall file with the court an application setting forth a detailed statement of (1) the services rendered, time expended and expenses incurred, and (2) the amounts requested.” Fed.R.Bankr.P. 2016(a). The burden of proof to show entitlement to the fees requested is on W & S. In re Pettibone Corp., 74 B.R. 293, 299 (Bankr.N.D.Ill.1987); In re Lindberg Products, Inc., 50 B.R. 220, 221 (Bankr.N.D.Ill.1985). Moreover, fee applications must stand or fall on their own merits. See In re Wildman, 72 B.R. 700 (Bankr.N.D.Ill.1987). Even if no objections are raised to a fee application, the Court is not bound to award the fees sought, and in fact, has a duty to independently examine the reasonableness of the fees. In re Chicago Lutheran Hospital Ass’n, 89 B.R. 719, 734-735 (Bankr.N.D.Ill.1988); In re Wyslak," }, { "docid": "19262458", "title": "", "text": "set forth in section 330 of the Bankruptcy Code. In relevant part, it provides: (a)(1) After notice to the parties in interest and the United States trustee and a hearing, and subject to sections 326, 328, and 329, the court may award to ... a professional person employed under section 327 (A) reasonable compensation for actual, necessary services rendered by the professional person, or attorney and by any paraprofessional person employed by any such person; and (B) reimbursement of actual, necessary expenses. (3)(A) In determining the amount of reasonable compensation to be awarded, the court shall consider the nature, the extent, and the value of such services, taking into account all relevant factors, including— (C) whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title; (4) (A) Except as provided in subparagraph (B) the court shall not allow compensation for- (i) unnecessary duplication of services or (ii) services that were not— (i) reasonably likely to benefit the debtor’s estate; or (II) necessary to the administration of the case. 11 U.S.C. § 330(a). An applicant bears the burden of proving the reasonableness of compensation from a bankruptcy estate. Woods v. City Nat’l Bank & Trust Co., 312 U.S. 262, 267-68, 61 S.Ct. 493, 496-97, 85 L.Ed. 820 (1941). Fees should be awarded for services that were beneficial at the time rendered and, by inverse construction, reasonably likely to benefit the debtor’s estate. In re Ames Dep’t Stores, Inc., 76 F.3d 66, 71, 72 (2d Cir.1996) (quotation omitted). Notwithstanding section 330(a), the bankruptcy court may deny compensation pursuant to section 328(c) if it determines that counsel for the estate is not disinterested or represents or holds an interest adverse to the interests of the estate. See, e.g., Fellheimer, Eichen & Braverman, P.C, v. Charter Technologies, Inc., 57 F.3d 1215, 1228-29 (3d Cir.1995); In re Wilde Horse Enterprises, Inc., 136 B.R. 830, 843, 845 (Bankr.C.D.Cal.1991). Similarly, the court may deny fees “on account of such attorney’s wrongdoing, negligence, or serious breaches of fiduciary obligations.”" }, { "docid": "15172230", "title": "", "text": "supplied). The Bankruptcy Reform Act of 1994 deleted the phrase “debtor’s attorney” from the statute. Section 330(a)(1)(A) now provides: (a)(1) After notice to the parties in interest and the United States trustee and a hearing, and subject to section 326, 328, and 329, the court may award to a trustee, an examiner, a professional person employed under section 327 or 1103— (A) reasonable compensation for actual, necessary services rendered by the trustee, examiner, professional person, or attorney and by any paraprofessional person employed by any such person[.] 11 U.S.C. § 330(a)(1)(A) (1994). Several courts have concluded that they no longer have any authority to award compensation to a debtor’s attorney as an administrative expense. See United States Trustee v. Garvey, Schubert & Barer (In re Century Cleaning Serv., Inc.), 215 B.R. 18 (9th Cir. BAP 1997); In re Thomas, 195 B.R. 18 (Bankr.W.D.N.Y.1996); In re Fassinger, 191 B.R. 864 (Bankr.D.Or.1996); In re Friedland, 182 B.R. 576 (Bankr.D.Colo.1995); In re Kinnemore, 181 B.R. 520 (Bankr.D.Idaho 1995). They have also relied on the provisions of § 330(a)(4) to preclude allowance of a claim of a debtor’s attorney against the Chapter 7 estate. Section 330(a)(4) provides: (4)(A) Except as provided in subparagraph (B), the court shall not allow compensation for — ■ (i) unnecessary duplication of services; or (ii) services that were not— (I) reasonably likely to benefit the debtor’s estate; or (II) necessary to the administration of the case. (B) in a chapter 12 or chapter 13 case in which the debtor is an individual, the court may allow reasonable compensation to the debtor’s attorney for representing the interests of the debtor in connection with the bankruptcy case based on a consideration of the benefit and necessity of such services to the debtor and the other factors set forth in this section. 11 U.S.C. § 330(a)(4). Those courts have interpreted Congress’ failure to include a reference to Chapter 7 debtor’s counsel fees in (a)(4)(B) “to mean [that] the legislature intended to exclude such attorneys from compensation from the bankruptcy estate.” Kinnemore, 181 B.R. at 521; see also Fassinger, 191 B.R. at 865;" }, { "docid": "688519", "title": "", "text": "Rules 2016 and 2017. . In re Perrine, 369 B.R. at 580-81 (citing cases). . Id. at 580-82. See also Conrad, Rubin & Lesser v. Pender, 289 U.S. 472, 477, 53 S.Ct. 703, 77 L.Ed. 1327 (1933). . Id. at 580-81 (\"Absent complete disclosure, the court is unable to make an informed judgment regarding the nature and amount of compensation paid or promised by the debtor for legal services in contemplation of bankruptcy.”). . In re Woodward, 229 B.R. 468, 474 (Bankr.N.D.Okla.1999) (quoting In re Saturley, 131 B.R. 509, 517 (Bankr.D.Me.1991)). . In re Perrine, 369 B.R. at 580-82 (\"Services aimed at prevention of bankruptcy likewise necessarily contemplate bankruptcy, and compensation received for such services falls within the ambit of § 329(a).”) (citing Conrad, Rubin & Lesser, 289 U.S. at 479, 53 S.Ct. 703). Indeed, it is entirely possible that each of the bankruptcy cases represented no more than a continuation of the state-court litigation between the debtors and the Bank, albeit in an alternate forum. . The section provides in part that: (a)(1) After notice to the parties in interest and the United States Trustee and a hearing, and subject to sections 326, 328, and 329, the court may award to a trustee, a consumer privacy ombudsman appointed under section 332, an examiner, an ombudsman appointed under section 333, or a professional person employed under section 327 or 1103- (A) reasonable compensation for actual, necessary services rendered by the trustee, examiner, ombudsman, professional person, or attorney and by any paraprofessional person employed by any such person; and (B) reimbursement for actual, necessary expenses. § 330(a) (emphasis added). . In re 5900 Assocs., Inc., 468 F.3d at 328. While some courts have suggested that there may be circumstances when a debtor’s attorney may receive payments without submitting a fee application under § 330 as long as those payments are disclosed under § 329, such is not the case here. See e.g., In re Jeanes, No. 01-00760, 2004 WL 1718093, *5 (Bankr.N.D.Iowa June 17, 2004). In his affidavit seeking employment as attorney in both of the 2003 Cases, Matthews clearly stated" }, { "docid": "10169690", "title": "", "text": "fact this was an appropriate agreement. We question this activity only in light of the fact that the write-off of an asset worth over $140,000.00 leaves the unsecured creditors with a return of only one-cent-on-the-dollar. In any event, it appears to the Court that the most complicated matter in this case has been the fee applications presented by the various parties. Before addressing these applications seriatum, we offer a brief analysis of the law on this issue. Section 330 of the Bankruptcy Code [11 U.S.C. § 330] states in pertinent part: (a) After notice and a hearing, and subject to sections 326, 328, and 329 of this title, the court may award to the trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title, or to the debtor’s attorney— (1) reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, or attorney as the case may be ... based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. Bankruptcy Rule 2016 further states: (a) Application for Compensation or Reimbursement. A person seeking interim or final compensation for services, or reimbursement of necessary ex penses, from the estate, shall file with the Court an application setting forth a detailed statement of (1) the services rendered, time expended, and expenses incurred, and (2) the amounts requested ... This Court has previously outlined its position on review of fee applications in Matter of Affinito & Son, Inc., 63 B.R. 495 (W.D.Pa., 1986), wherein we stated: The Bankruptcy Court has the independent authority and responsibility to determine the reasonableness of compensation. In re N.S. Garrott & Sons, 54 B.R. 221, 222 (Bktcy.E.D.Ark.1985); In re Smith, 48 B.R. 375, 379 (Bktcy.C.D.Ill.1984); In re Meade Land and Development Company, Inc., 527 F.2d 280, 283 (3rd Cir.1975). However, the burden of proof as to the reasonableness of requested compensation is that of the applicant. In re Holthoff 55" }, { "docid": "4276854", "title": "", "text": "of the United States Trustee — -this Court has an independent judicial responsibility to evaluate the appropriateness of the fees and expenses requested. § 330(a)(3) and Fed. R. BankR.P. 2016 and 2017; S.T.N., 70 B.R. at 831; In re ACT Mfg., Inc., 281 B.R. 468, 474 (Bankr.D.Mass.2002). This responsibility is especially acute since the professionals seek compensation out of a bankruptcy estate. S.T.N., 70 B.R. at 832. The rationale for the bankruptcy court’s independent duty to review fee applications has been described as “a duty to ... protect the estate ‘lest overreaching ... professionals drain it of wealth which by right should inure to the benefit of unsecured creditors.’ ” In re Keene Corp., 205 B.R. 690, 695 (Bankr.S.D.N.Y.1997). The Bankruptcy Reform Act of 1994 clarified many of the judicial standards and practices regarding the allowance of professional fees. Ferrara & Hantman v. Alvarez (In re Engel), 124 F.3d 567, 572 n. 10 (3d Cir.1997). The 1994 modifications to § 330 retained the language of the 1978 Code authorizing compensation for “actual necessary services rendered” but also codified standards for determining whether compensation to be awarded is reasonable and necessary. The current form of § 330 provides that a court may award to a trustee, a consumer privacy ombudsman appointed under § 332, an examiner, an ombudsman appointed under § 333, or a professional person employed under §§ 327 or 1103: (A)reasonable compensation for actual, necessary services rendered by the trustee, examiner, ombudsman, professional person, or attorney and by any paraprofessional person employed by any such person; and (B)reimbursement for actual, necessary expenses. Pursuant to § 330(a)(2), “the court may ... award compensation that is less than the amount of compensation that is requested.” In turn, § 330(a)(3) provides: In determining the amount of reasonable compensation to be awarded to an examiner, trustee under chapter 11, or professional person, the court shall consider the nature, the extent, and the value of such services, taking into account all relevant factors, ineluding- (A) the time spent on such services; (B) the rates charged for such services; (C) whether the services were necessary" }, { "docid": "18509235", "title": "", "text": "MEMORANDUM-OPINION DAVID T. STOSBERG, Bankruptcy Judge. This matter comes before the Court on Application by the Trustee for the allowance of interim compensation and disbursements for services rendered by the law firm of Ruck, Wilson & Cooper relative to the collection of accounts and legal matters. The verified application requests compensation for legal services in the sum of $5,968.50 for 51.9 hours of work and expenses in the sum of $128.00. An analysis of a compensation for a professional begins with 11 U.S.C. § 330(a) which provides: (a) After notice to any parties in interest and to the United States trustee and a hearing, and subject to sections 326, 328, and 329 of this title, the court may award to a trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title, or to the debtor’s attorney— (1) reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, or attorney, as the case may be, and by any paraprofessional persons employed by such trustee, professional person, or attorney, as the case may be, based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and (2) reimbursement. for actual, necessary expenses. Regardless whether objections are raised to the application seeking compensation from the bankruptcy estate, the Court has a duty to independently examine the reasonableness of the requested fees. The general principles governing the reasonableness of fees are set forth in In re Belknap, Inc., 103 B.R. 842 (Bankr.W.D.Ky.1989). The Court considered the twelve factor approach adopted by the Court in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974) as the formula for determining the allowability of fees. The Johnson factors are as follows: 1). The time and labor required; 2). The novelty and difficulty of the questions involved; 3). The skill requisite to perform the legal services properly; 4). The preclusion of other employment by the attorney due to acceptance of the case; 5). The customary fee;" }, { "docid": "11107400", "title": "", "text": "by the Debtor’s counsel are $10,122.00 4) The total fees requested by the accountant for the Debtor are $19,-452.00 5) There is outstanding a priority claim for pension funds in the amount of $3,938.00 6) There is outstanding a priority claim for taxes in the amount of $892.93 7) The Plan provides, for a three percent (3%) distribution to the general unsecured creditors. ANALYSIS OF THE LAW Section 330 of the Bankruptcy Code [11 U.S.C. § 330] states in pertinent part: (a) After notice and a hearing, and subject to sections 326, 328, and 329 of this title, the court may award to the trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title, or to the debtor’s attorney— (1) reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, or attorney as the case may be ... based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. Bankruptcy Rule 2016 further states: (a) Application for Compensation or Reimbursement. A person seeking interim or final compensation for services, or reimbursement of necessary expenses, from the estate, shall file with the court an application setting forth a detailed statement of (1) the services rendered, time expended, and expenses incurred, and (2) the amounts requested ... The Bankruptcy Court has the independent authority and responsibility to determine the reasonableness of compensation. In re N.S. Garrott & Sons, 54 B.R. 221, 222 (Bktcy.E.D.Ark.1985); In re Smith, 48 B.R. 375, 379 (Bktcy.C.D.Ill.1984); In re Meade Land and Development Co., Inc., 527 F.2d 280, 283 (3rd Cir.1975). However, the burden of proof as to the reasonableness of requested compensation is that of the applicant. In re Holthoff, 55 B.R. 36, 39 (Bktcy.E.D.Ark.1985); In re Nashville Union Stockyard Restaurant Co., Inc., 54 B.R. 391, 396 (Bktcy.M.D.Tenn.1985); In re Smith, supra; In re Meade Land and Development Co., Inc., supra. In addition to those requirements outlined in Bankruptcy" }, { "docid": "2160078", "title": "", "text": "In Re Albert Bros. Contractors, Inc., 27 B.R. 586, 591 (W.D.Va.1983). To undertake a thorough analysis, an attorney must consider the following questions: are the contemplated services appropriate in view of the size of the estate, In Re Classic Arms Intern. Ltd., 23 B.R. 489, 491-92 (Bkrtcy.E.D.N.Y.1982); if the contemplated services are rendered successfully, is there a reasonable likelihood that there will still be a net benefit to the estate after professional fees are paid; is the burden of the probable cost of legal services disproportionately large in relation to the size of the estate and maximum probable recovery; to what extent will the estate suffer if the services are not rendered; to what extent may the estate benefit if the services are rendered and what is the likelihood of the disputed issues being resolved successfully? Such an analysis is a necessary part of any professional fee application. See In Re Stewart, 10 B.R. 472, 473-77 (Bkrtcy.E.D.Va.1981). The extent to which applications for professional allowances address these criteria is often an indication of the extent, or lack thereof, of the applicant’s experience and abilities in the matter under consideration. III. THE EXTENT OF COMPENSATION 11 U.S.C. § 330(a) provides: After notice and a hearing, and subject to sections 326, 328 and 329 of this title, the court may award to a trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title, or to the debtor’s attorney— (1) reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, or attorney, as the case may be, and by any paraprofessional persons employed by such trustee, professional person, or attorney, as the case may be, based on the nature, the extent, and the value of such services, the time spent on such services and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. He s}s * H* * * To determine the number of hours ‘reasonably’ spent, as well as in setting a ‘reasonable’ hourly rate, a court must review the work" }, { "docid": "20274706", "title": "", "text": "facts regarding the liability of Victoria Blackburn. In ruling on professional fees as an administrative expense claim, Debtors request that the Court specify the specific amounts that Debtors sought in their fee petition. Prior to Debtors’ conversion from Chapter 13 to Chapter 7, Debtors’ attorneys, Myler, Ruddy & McTavish, and Debtors’ valuation expert, James D. Keith, sought compensation for post-petition services in their representation of Debtors in their adversary trial and priority cost of administrative claim, pursuant to 11 U.S.C. §§ 330, 503, 507. Keith’s application for compensation, dated May 11, 2009, sought $6760.00 in fees and $142.90 in expenses. Debtors’ counsel’s application for compensation, dated May 11, 2009, sought $18765.00 in fees and $2535.89 in expenses. Section 329(b) of the Bankruptcy Code effectively allows the Court to determine whether the fees charged by the debtor’s attorney are excessive and, if so, the Court may cancel any compensation agreement between the attorney and the client. See In re Mortakis, 405 B.R. at 297 (Bankr.N.D.Ill.2009) (citing In re Wiredyne, Inc., 3 F.3d 1125, 1127 (7th Cir.1993)). Section 329(a) requires a debtor’s attorney to “file with the court a statement of the compensation paid or agreed to be paid ... and the source of such compensation.” Id. (quoting 11 U.S.C. § 329(a)). Bankruptcy courts have wide discretion to determine reasonable compensation for actual and necessary services. In re Wildman, 72 B.R. 700, 705 (Bankr.N.D.Ill.1987). Section 330(a)(1) provides: (a)(1) After notice to the parties in interest and the United States Trustee and a hearing, and subject to sections 326, 328, and 329, the court may award to ... a professional person employed under section 327 or 1103— (A) reasonable compensation for actual, necessary services rendered by the ... professional person, or attorney and by any paraprofessional person employed by any such person; and (B) reimbursement for actual, necessary expenses. 11 U.S.C. § 330(a) (2006). Thus, pursuant to 11 U.S.C. § 330(a)(3), courts should consider six factors to determine whether or not to award attorney fees. Section 330 states, in relevant part: (a)(3) In determining the amount of reasonable compensation to be awarded to" }, { "docid": "22880545", "title": "", "text": "§ 330(a) does not permit the award of fees to Chapter 7 or Chapter 11 debtor’s attorneys. Thus, he argues, the bankruptcy court was not authorized to award fees to either E & H or JPL who served in that capacity. Even if section 330(a) does allow such an award of fees, Smith argues that the fee awards cannot be supported under the benefit analysis approach employed in Pfeiffer v. Couch (In re Xebec), 147 B.R. 518 (9th Cir.BAP 1992). We address these contentions in turn. Section 330(a) of the Bankruptcy-Code governs the compensation of officers and professionals working on a bankruptcy case. Prior to 1994, section 330(a) provided that: After notice to any parties in interest and to the United States trustee and a hearing, ... the court may award to a trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title [which authorizes the trustee or creditors’ committee to employ attorneys and other professionals], or to the debtor’s attorney— (1) reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, or attorney, as the case may be, and by any paraprofessional persons employed by such trustee, professional person, or attorney, as the case may be, based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. 11 U.S.C. § 330(a) (1988) (emphasis added). Subsequently, Congress passed the Bankruptcy Reform Act of 1994(Reform Act). The Reform Act renumbered various provisions and substituted the following relevant provisions in section 330: (a)(1) After notice to the parties in interest and the United States trustee and a hearing, ... the court may award to a trustee, an examiner, a professional person under section 327 or 1103— (A) reasonable compensation for actual, necessary services rendered by the trustee, examiner, professional person, or attorney and by any paraprofessional person employed by any such person; and (B) reimbursement for actual, necessary expenses. (a)(3)(A) In determining the amount" } ]

[ { "docid": "6449257", "title": "", "text": "combined, do not disclose certain limitations found in the claims. The courts have many times held that claims may properly be rejected upon a combination of references even though that combination does not show all the elements defined in the claims. As we understand the board’s position, it holds, as did the examiner, that in view of what the prior art shows, the claims do not define invention over the prior art. That is to say, what appellant’s claims call for that is not shown in the prior art does not make the claims patentable over the disclosures of the prior art. We agree with the holdings of the board with respect to the rejection of the claims. The tribunals below correctly stated the disclosures of the references, and a repetition thereof is not deemed necessary here. It appears from the record that appellant’s application, Serial No. 228,188 above referred to, was involved in a suit under R. S. § 4915, in which Mr. Justice Luhring of the District Court of the United States for the District 'of Columbia directed the allowance of two claims which were numbered 4 and 5. Those claims were subsequently transferred to the present application and appear therein as claims 6 and 7 and are in the record under the heading of “Allowed Claims.” Justice Luhring made certain findings of fact and conclusions of law. From these facts appellant argues that the board failed to give proper consideration to the holdings of said District Court. The reasoning of another court on the nature of an invention and its conclusions as to the prior art in a case such as the one at bar may be a proper and persuasive matter for consideration by this court, but it is argued by no one that it is controlling or binding on us. The claims there were different from the claims at bar, being more restricted to certain characteristics of the component materials of the abrading article. Moreover, it is well settled under circumstances similar to those which confront us here that our decision as to the patentability" } ]

[ { "docid": "10964690", "title": "", "text": "storage compartment. In this situation, the only question is whether it is proper to combine the references. We have been impressed by the obvious advantages which appellant’s construction has over the Carter door, but we find ourselves unable to believe that door construction and window construction are not sufficiently analagous so that it would not have been “obvious,” as that term is used in patent law, to one skilled in the art to adapt the extended track and storage compartment of Wendelben’s or Lunken’s window to Carter’s door. Appellant argues that the hypothetical combination of Carter in view of Lnnken or Wendelken requires extensive modification of the individual features of each of them, and states that this is not permissible, citing In re Pappas et al., 38 C. C. P. A. (Patents) 746, 758, 185 F. 2d 695, 88 USPQ 108. It is undeniably true that Carter does not suggest tracks extending between the door opening and the storage compartment so as to permit the window units to be selectively moved between the two, and it is also true that the cumbersome and bulky sash, pulley, and weight arrangement of the secondary window references would probably be unsuitable for a door such as described by Carter and appellant. However, the proper inquiry should not be limited to the specific structure shown by the references, .but should be into the concepts fairly contained therein, and the overriding question to be determined is whether those concepts would suggest to one skilled in the art the modification called for by the claims. In re Ewald, 26 C. C. P. A. (Patents) 1312, 104 F. 2d 622, 42 USPQ 35. In re Merkle, 32 C. C. P. A. (Patents) 1151, 150 F. 2d 445, 66 USPQ 165. Despite very able argument by counsel, we strongly believe that it would have been obvious to one skilled in the art, having before him Carter’s door with its storage compartment, and Wendelken’s and Lunken’s windows and adjacent and connecting storage compartments, to make the modifications necessary to combine them. •'For the reasons hereinbefore stated, the decision of.the" }, { "docid": "23261216", "title": "", "text": "the board considered the footing structure claimed to be an uninventive mechanical equivalent of that shown by Goldblatt and the nut-locking looped spring member to be the mechanical equivalent of the locknut shown in Bean. It was their opinion that it would not be inventive to modify the Bean device using these features shown in the other references in the manner recited in this claim. The board also pointed out that strengthening ribs were a notoriously old expedient and that it regarded provision of the same to be a matter of mechanical skill. Both tribunals further pointed out — we think correctly — that there was really no patentable coaction between the various detailed components of the claim, as, for example, the resilient footing and the looped spring lock means. However, the claim was not directly rejected by either tribunal as being aggregative. It is well settled that claims may be properly rejected on a combination of several patents taking specific features from each. It is not necessary that a complete disclosure be contained in a single reference. In re Lindberg, 39 C. C. P. A. (Patents) 866, 194 F. (2d) 732, 93 USPQ 23, and cases cited therein. Moreover, a claim may sometimes be properly rejected on a combination of references even though that combination does not show all limitations in the claim, providing such limitations as are not shown are not inventive and patentable over the disclosures of the prior art. In re Oakes, supra. We think these rules are particularly applicable where, as here, a claim recites in detail a plurality of distinct components between which there is no coaction so that the details of any one of these respective components are a matter of indifference to the nature and operation of the other components. We concur with the board’s opinion that claim 14 does not involve invention over the prior art but rather involves only the exercise of mechanical or designing skill which has not produced any unobvious or unexpected results. To be patentable a claim must be directed to inventive subject matter, as novelty and" }, { "docid": "22044043", "title": "", "text": "We deem it necessary at this point to review the criterion of patentability which is applicable to this case where a known combination, such as shown in Eckfeldt, is modified by the use of a known element, such as shown in Eberhardt et al. In cases involving analogous factual situations, it has been stated that a new combination of old elements may be patentable; but not all'new combinations are patentable; and that if a new combination of old elements is to be patentable, the elements must cooperate in such a manner as to produce a new, unobvious, and unexpected result. In re Kaufmann, 39 C. C. P. A. (Patents) 769, 193 F. 2d 331, 92 USPQ 141; In re Lindberg, supra. Furthermore, as a general matter, in determining patentability, the conception of a new and useful improvement must 'be considered along with the actual means of achieving the improvement. In re DeLancey, 34 C. C. P. A. (Patents) 849, 159 F. 2d 737, 72 USPQ 477; In re Bisley, 39 C. C. P. A. (Patents) 982, 197 F. 2d 355, 94 USPQ 80. And it should be remembered that in many cases the discovery of a problem is often an essential element in:ah invention correcting such a problem; and though the problem, once realized, may be solved by the use of old and known elements, this does not necessarily negative invention. In re Hamilton, 20 C. C. P. A. (Patents) 987, 64 F. 2d 141, 17 U. S. Pat. Q. 245; In re Bisley, supra. In the present case, appellant has recognized a problem which is inherent in the titration of fluids with the general type of apparatus ■involved here. This problem, as stated above is that rapid fluctuations of signal voltage are not representative of true end point values. To overcome this problem, which was not recognized in the prior art, appellant has combined elements, all old in the art. However, since this combination of elements evidences the discovery and solution of a heretofore unknown problem to produce a new, unobvious,- and unexpected result, namely improved titration, we feel" }, { "docid": "22044039", "title": "", "text": "of preventing undesirable fluctuations of output current from the amplifier; the electro-mechanical amplifier of Eckfeldt cannot do this. The use of the former therefore produces different results in the titrating system since it minimizes the output of fluctuating current from the amplifier. It is our opinion, therefore, that since, the electronic amplifier does not operate in the same way as the electromechanical amplifier, and since it produces a different result, it cannot be considered the equivalent of the latter. Having determined that there is no equivalency between the electromechanical amplifier and the electronic amplifier in the present case, we must now determine whether claim 29 defines jin invention. However, there is a closely related ancillary question which must be considered, namely, whether the references were properly combined. If they were, there is no question but that claim 29 was properly rejected since the combination of references meets all the limitations of the claim. It is too well settled for citation that references may be combined for the purpose of showing that a claim is unpatentable. However, they may not be combined indiscriminately, and to determine whether the combination of references is proper, the following criterion is often used: namely, whether the prior art suggests doing what an applicant has done. In re Fridolph, 30 C. C. P. A. (Patents) 939, 134 F. 2d 414, 57 USPQ 122; In re Dalzell, 33 C. C. P. A. (Patents) 808, 152 F. 2d 1013, 68 USPQ 171. Furthermore, when references are combined to negate patentability, it should-also be .considered whether one skilled in the art with the references before him could have made the combination of elements claimed without the exercise of invention. In re Goepfrich, 30 C. C. P. A. (Patents) 1181, 136 F. 2d 918, 58 USPQ 324. The foregoing cases, in our opinion, stand for the proposition that it is not enough for a valid rejection to view the prior art in retrospect once an applicant’s disclosure is known. The art applied should be viewed by itself to see if it fairly disclosed doing what an applicant has done. If" }, { "docid": "4232685", "title": "", "text": "not in terms of what it is, but rather by what it does, then it should be rejected as functional. In re Fullam et al., 34 C. C. P. A. (Patents) 1018, 161 F. (2d) 247, 73 USPQ 399, and cases cited therein. In the present case, we believe that the phrase relating to the zeta potentials is defined in terms of what it is, notwithstanding its seemingly functional language because of its dependency on the step of adding the salt. We therefore do not feel that it is objectionably functional. Having thus come to the conclusion that the claim is not functional, we must now consider the question of patentability of the claims over the prior art. The pertinent portions of the prior art have been set forth above; this subject matter need not be repeated here. . It is significant to note, however, that while the references teach shredding, heating, the use of tetrasodium pyrophosphate, and the use of electrodes, that none of them teach the concept of inducing zeta potentials. It is to be further noted that the obtaining of the zeta potentials set forth by appellants is not necessarily inherent in the processes taught by the prior art. We have often held that in determining patenta-bility the conception of a new and useful improvement must be considered along with the actual means of achieving the improvement. In re Bisley, 39 C. C. P. C. (Patents) 982, 197 F. (2d) 355, 94 USPQ 80; In re DeLancey, 34 C. C. P. A. (Patents) 849, 159 F. (2d) 737, 72 USPQ 477. Thus the mere fact that others have used the same chemical is not necessarily conclusive of lack of invention. As stated above, we are of the opinion that the phrase relating to zeta potentials is a positive limitation of the claim. This being the case, it can be seen from the specification that an optimum concentration is necessary to give optimum zeta potentials. If the concentration is either too small or too large, the optimum zeta potentials will not be obtained. Thus it would seem that" }, { "docid": "4232686", "title": "", "text": "to be further noted that the obtaining of the zeta potentials set forth by appellants is not necessarily inherent in the processes taught by the prior art. We have often held that in determining patenta-bility the conception of a new and useful improvement must be considered along with the actual means of achieving the improvement. In re Bisley, 39 C. C. P. C. (Patents) 982, 197 F. (2d) 355, 94 USPQ 80; In re DeLancey, 34 C. C. P. A. (Patents) 849, 159 F. (2d) 737, 72 USPQ 477. Thus the mere fact that others have used the same chemical is not necessarily conclusive of lack of invention. As stated above, we are of the opinion that the phrase relating to zeta potentials is a positive limitation of the claim. This being the case, it can be seen from the specification that an optimum concentration is necessary to give optimum zeta potentials. If the concentration is either too small or too large, the optimum zeta potentials will not be obtained. Thus it would seem that the mere addition of a proper salt in greater quantities would not give increased de-inking. It appears that the secret discovered by appellants is to obtain an optimum concentration of the chemical which in turn gives the desired zeta potentials. This, we feel, is a sufficiently unobvious result of applicants’ process to warrant patent protection. We are especially of this opinion since the prior art does not appear to have recognized the problem solved by appellants and therefore cannot be said to have taught its solution. The discovery of a problem calling for an improvement is often a very essential element in an invention correcting- .such a problem. In re Bisley, supra; In re Hamilton, 20 C. C. P. A. (Patents) 987, 64 F. (2d) 141, 17 USPQ 245. We are therefore of the opinion that since appellants' have set forth in their claims a series of steps which were not taught by the prior art and which do give an unobvious result that the claims should have been allowed. ' Since we have found" }, { "docid": "23276784", "title": "", "text": "existence of the problem or how to solve it; nor do we find any such suggestions in Duryea et al. and Johnson, •the secondary references. The mere fact that elements of applicants’ •process may be found in various patents does not necessarily negative invention, In re Holt, supra. Moreover, , the concept of doing a thing, the result of which is new and useful and unexpected, must be considered along with the actual steps of doing it in considering the presence or absence of invention and patentability. In re Bisley, 39 C. C. P. A. (Patents) 982, 197 F. 2d 355, 94 USPQ 80. We concur with the dissenting member of the board that appellants have recog.nized, attacked and successfully solved this problem, achieving new, unobvious and unexpected results in a manner not suggested or disclosed to one skilled in the art by the cited references, either singly or in combination. In re Emile Frederick, Jr., 36 C. C. P. A. (Patents) 1123, 175 F. 2d 462, 82 USPQ 219. In view of the foregoing, we think the rejection affirmed by the majority of the board is based on an unwarranted reconstruction of the prior art in the light of appellants’ disclosure and hence is not proper. In re Bisley, supra. We therefore are of the opinion that claims 24, 25 and 26 define a patentable invention not disclosed by the prior art, and that the majority of the board erred in sustaining the .examiner’s rejection. We turn now to consideration of claim 27, which has been rejected as indefinite. We agree with the following statement by the ■ examiner: * * * It is well settled that a claim is interpreted in the light of the specification, but it is equally well settled that a [6] claim should be clear and definite. According to the disclosure of this application, any air in the envelope is evacuated before surrounding the envelope with a body of fluid and pressing. To illustrate the indefiniteness of this claim, it is noted that as drawn, the claim reads on and apparently is directed to" }, { "docid": "5219448", "title": "", "text": "is said to be a particularly useful device for carrying out the thermal reduction of magnesium oxide, because the furnace can directly heat the reactants to a temperature high enough so that the vapor pressure of magnesium liberated in the reaction is at least one atmosphere. Operation of the furnace at atmospheric pressure is said to be very desirable for the continuous production of magnesium because feeding and discharging operations are simplified and stress on materials of construction is minimized. Magee et al. do not disclose the use of an inert gas in their process. Indeed, if the vapor pressure of the magnesium vapor liberated in the reaction is at least one atmosphere and that (one atmosphere) is the pressure in the reaction zone, it is apparent that Magee et al. have no use for an inert or any other gas in their process. The secondary reference, Parry, discloses that in the reduction of magnesium ores in high vacuum the reaction zone may be flooded with a suitable inert gas, for example, hydrogen, helium or argon. Because Magee et al. have no use for an inert gas in their process, we do not believe that it would have been obvious to combine the disclosures of Magee et al. and Parry. Neither reference contains the slightest suggestion to use what it discloses in combination with, what is disclosed in the other. In re Bergel, 292 F.2d 955, 956-57, 48 CCPA 1102, 1105 (1961); In re Adams, 356 F.2d 998, 1001-1002, 53 CCPA 996, 1000 (1966). Furthermore, neither reference contains any disclosure of a substantially static atmosphere of inert gas nor of the mass transfer of magnesium vapor predominately by diffusion. We conclude that the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would not have been obvious at the time the invention was made to a person having ordinary skill in the art. We therefore reverse the rejection of claims 1 through 22 under 35 U.S.C. § 103. Claim 23 was rejected as obvious in view of" }, { "docid": "4225028", "title": "", "text": "for combination with the other references as proposed.” This court in the case of In re Milne, 31 C. C. P. A. (Patents) 918, 140 F. (2d) 1003, 60 USPQ 559, held that no such requirement has been established as a criterion in rejection of patent claims, and that in the consideration of a plurality of references whose combined teachings are relied upon to negative patentability, the question always is “could one skilled in the art with the references before him make the combination of elements * * * claimed without exercise of the inventive faculty.” To the same effect, see also In re Stover, 32 C. C. P. A. (Patents) 823, 146 F. (2d) 299, 64 USPQ 186; In re Drisch et al., 38 C. C. P. A. (Patents) 1150, 189 F. (2d) 994, 90 USPQ 96; In re Zabel et al., 38 C. C. P. A. (Patents) 832, 186 F. (2d) 735, 88 USPQ 367. There is accordingly no legal basis for appellant’s contention here that since the concept of controlling a radio frequency oscillator used in conjunction with a radio receiver for regulating the operation of a household furnace appears to be a novel step over the disclosure of the prior art, and especially the references of record, claim 39 and the other appealed claims are allowable. For the reasons stated, the decision of the board is affirmed." }, { "docid": "4225027", "title": "", "text": "instead of a radio relay for opening and closing a circuit in a temperature responsive system. ' hi or den et al. disclose an improvement in radio relay alarm systems for use with apparatus when fire occurs, etc. The patent to Gerst relates to a similar invention and apparatus for notifying, through the operation of radio relay signals, increased temperature or fire at any distance or place. The solicitor has briefly defined the action of the Patent Office in these words: “Succinctly summarized, the position of the two tribunals below is that Cameron shows a specific temperature responsive system for opening and closing a circuit to an electromagnetic relay controlling a furnace, that hi or den et al. and Gerst (and likewise Eoberts and Haimbaugh) show a radio relay, and that there is no invention in substituting such a radio relay for Cameron’s electromagnetic relay. With such a substitution, all the claims on appeal are met, and the examiner and the Board concurred in so holding.” Appellant urges here that Cameron “does not show basis for combination with the other references as proposed.” This court in the case of In re Milne, 31 C. C. P. A. (Patents) 918, 140 F. (2d) 1003, 60 USPQ 559, held that no such requirement has been established as a criterion in rejection of patent claims, and that in the consideration of a plurality of references whose combined teachings are relied upon to negative patentability, the question always is “could one skilled in the art with the references before him make the combination of elements * * * claimed without exercise of the inventive faculty.” To the same effect, see also In re Stover, 32 C. C. P. A. (Patents) 823, 146 F. (2d) 299, 64 USPQ 186; In re Drisch et al., 38 C. C. P. A. (Patents) 1150, 189 F. (2d) 994, 90 USPQ 96; In re Zabel et al., 38 C. C. P. A. (Patents) 832, 186 F. (2d) 735, 88 USPQ 367. There is accordingly no legal basis for appellant’s contention here that since the concept of controlling a radio" }, { "docid": "22265355", "title": "", "text": "although he might be surprised at the extent of improvement obtained. No invention is involved in discovering optimum ranges of a process by routine experimentation. In re Swain et al., supra. Appellants suggest that the decision to experiment with the process in the first place involves invention, apparently on the theory that the process as disclosed by Hock and Lang appeared so impractical that no skilled chemist would have experimented with it. References have always been valid for what they would convey, explicitly or implicitly, to one skilled in the art. That experimentation may not have appeared promising is of no importance. It has been held that a reference may be valid even though it states in so many words that its disclosure is not practical. In re McKee et el., 25 C. C. P. A. (Patents) 1116, 96 F. (2d) 504, 37 USPQ 613; In re Krukovsky et al., 38 C. C. P. A. (Patents) 731, 184 F. (2d) 333, 87 USPQ 110. The Board of Appeals, in concluding its opinion, stated as follows: * * * any one in possession of tlie information presented by Hock et al would naturally experiment to discover optimum conditions of temperature and concentration of acid for commercial exploitation of tbe process. Suck experimentation is no more than the application of the expected skill of the chemical engineer and failure to perform such experiments would, in our opinion, show a want of the expected skill of the engineer. * * * That we are in complete agreement with the board’s reasoning is clear from the foregoing discussion. Some of the appealed claims, as noted above, specify the use of certain solvents in the process, in addition to the temperature and acid concentration limitations. The Primary Examiner stated that the reference showed the use of solvents, and stated that the choice of a particular solvent was within the skill of the art. The Board of Appeals affirmed this ground of rejection. Although appellants argue that this feature imparts patentability to the claims, no arguments are advanced sufficient to discredit the examiner’s ruling in this" }, { "docid": "15084775", "title": "", "text": "the chemical reaction to take place. Those familiar with spray drying know that dry products can be obtained even though a large amount of water may be present with the material to be dried. Appellant urges that his product does not have much sulfate as a contaminant. Though not mentioned by Friedrich et al., this seems to be merely an additional characteristic inherent in their process, In re Arnold et al., 50 CCPA 1166, 1963 C.D. 400, 794 O.G. 502, 315 F. (2d) 951, 137 USPQ 330. [Emphasis ours.] The board’s reference to “spray drying” appears to have been injected as something of which it was taking judicial notice, without having been mentioned in any reference of record. While Aydelotte et al. and Haywood both disclose spraying of some sort, neither spray dries. While we have heard of spray drying, it is not a technique of which we would feel free to take judicial notice. We are of the opinion that if the Patent Office wishes to rely on what “Those familiar with spray drying would know,” it must produce some reference showing what such knowledge consists of. So far as we can see, appellants do spray and their sprayed solution is dried. We are unable to find, however, any indication in the references that such a step would have the effect which appellants sought and found, namely, a reduction of the undesirable oxidation of sulfite to sulfate in an old reaction tending to produce sulfate when the reactant gas contained large amounts of oxygen. The board apparently thought that the minimizing of sulfate production would be mherent in the process of Friedrich et al. However, this is no support for a rejection for various reasons. Fried-rich et al. make no mention of it, as the board conceded. Their process is not appellants’ process. It is a reaction between solid, powered material and gas, the only water present being chemically combined water and hygroscopic water; appellants react sprayed solution and gas. As we pointed out in In re Adams, 53 CCPA 996, 356 F. 2d 998, 148 USPQ 742, the" }, { "docid": "22044040", "title": "", "text": "However, they may not be combined indiscriminately, and to determine whether the combination of references is proper, the following criterion is often used: namely, whether the prior art suggests doing what an applicant has done. In re Fridolph, 30 C. C. P. A. (Patents) 939, 134 F. 2d 414, 57 USPQ 122; In re Dalzell, 33 C. C. P. A. (Patents) 808, 152 F. 2d 1013, 68 USPQ 171. Furthermore, when references are combined to negate patentability, it should-also be .considered whether one skilled in the art with the references before him could have made the combination of elements claimed without the exercise of invention. In re Goepfrich, 30 C. C. P. A. (Patents) 1181, 136 F. 2d 918, 58 USPQ 324. The foregoing cases, in our opinion, stand for the proposition that it is not enough for a valid rejection to view the prior art in retrospect once an applicant’s disclosure is known. The art applied should be viewed by itself to see if it fairly disclosed doing what an applicant has done. If the art did not do so, the references may have been improperly combined. At this point we will analyze claim 29 in the light of both the prior art'and the foregoing law to determine whether the references .were properly combined. It is to be noted that claim 29 recites, as an element of the titrating apparatus, an electronic amplifier including a reactive circuit for “more strongly attenuating high frequency components of the amplifier input than low.frequency components.” The purpose óf this structure, in the words of the examiner, is.to'“* * * minimize amplification of rapid fluctuations of signal voltage, which would not be representative of end point values. * * *” Thfe-Eck-feldt patent teaches the use of an electro-mechanical amplifier for use with titrating apparatus of the general nature disclosed by appellant. There is no doubt that the Eberhardt et al. electronic amplifier -possesses the structure recited in the claim, and is capable of performing the function of appellant’s amplifier. However, there is -no teaching in the Eckfeldt patent that a problem exists in that" }, { "docid": "22044042", "title": "", "text": "rapid fluctuations of the signal voltage are not representative of end point values. While the Eberhardt et al. amplifier is inherently capable of minimizing the effect of undesirable fluctuating signals, there is no teaching in the patent that the amplifier can be used with titrating apparatus for the purpose of minimizing the effect of undesired fluctuations of signal voltage which occur in a titrating operation of the nature involved here. In short, there is no teaching in either of the patents which would suggest that they could be combined for the purpose of producing a more accurate titration. In fact, a person having the references before him who was not cognizant of appellant’s disclosure would not be informed that the problems solved by appellant ever existed. Therefore, can it be said that these references which never recognized apellant’s problem would have suggested its solution? We think not, and therefore feel that the references were improperly combined since there is no suggestion in either of the references that they can be combined to produce apellant’s result. We deem it necessary at this point to review the criterion of patentability which is applicable to this case where a known combination, such as shown in Eckfeldt, is modified by the use of a known element, such as shown in Eberhardt et al. In cases involving analogous factual situations, it has been stated that a new combination of old elements may be patentable; but not all'new combinations are patentable; and that if a new combination of old elements is to be patentable, the elements must cooperate in such a manner as to produce a new, unobvious, and unexpected result. In re Kaufmann, 39 C. C. P. A. (Patents) 769, 193 F. 2d 331, 92 USPQ 141; In re Lindberg, supra. Furthermore, as a general matter, in determining patentability, the conception of a new and useful improvement must 'be considered along with the actual means of achieving the improvement. In re DeLancey, 34 C. C. P. A. (Patents) 849, 159 F. 2d 737, 72 USPQ 477; In re Bisley, 39 C. C. P. A. (Patents)" }, { "docid": "6468159", "title": "", "text": "of the inventive faculty, produce the structure embraced in the claim before us. Appellant contends that references may not properly be combined unless the cited art teaches how to combine the cited structures and in support of this contention cites the case of Ex parte Gee., 261 O. G. 800 (C.D. 1919, p. 49). This was a decision of a Commissioner of Patents which supports appellant’s contention, but the decision has never been followed by this court or by any other court so far as we are aware. It is true that the teachings of a patent may lead one skilled in the art away from an invention in controversy, in which case such teaching may be considered as bearing upon the availability of a reference, but such is not the case here. The only question is whether one skilled in the art, familiar with appellant’s British patent, upon examining the Baxter patent would, without the exercise of the inventive faculty, determine that the addition of Baxter’s baffle would be an improvement upon the structure disclosed by the British patent. That is the only consideration required to determine patentability where references are combined. In the case of In re Goepfrich, 30 C. C. P. A. (Patents) 1181, 136 F. (2d) 918, the same contention was made that, before references may be combined to negative patentability, one or more of the references must teach the combination claimed. We rejected this contention and, in our opinion, said: la the consideration of references, the question is, could one skilled in the art with the references before him make the combination of elements here claimed without exercise of the inventive faculty ? — and that is the only question before us on this appeal. If appellant’s contention should be sustained, then it would never be necessary to combine references to negative patentability, for if one of the references much teach the combination claimed, that reference would be a complete anticipation of the invention and there would be no occasion to combine references. Finding no error in the decision appealed from, it is afírmed." }, { "docid": "18916083", "title": "", "text": "pertinent, and the patent to Werner, while pertinent, was cumulative. It further held that the patent to Pew et al., No. 1,825,976, was cumulative with Penniman. Appellant does not deny.that Nelson et al. and Wagner et al., the principal references, disclose a process of cracking a heavy viscous oil to obtain a lighter viscous oil for lubricants, or that indirect heating-had been used in the prior art in processes which involved the cracking of oil. Appellant contends, however, that none of the secondary references, in its entirety, discloses the heating method, or the equivalent thereof, described in appellant’s specification and called for in the combination defined by the claims on appeal. The fact that no single reference in its entirety discloses the heating method claimed by appellant is not a decisive factor in this case. Under the rule established by this court, it is entirely proper to consider a number of references to the prior art in connection with the allowance of patent claims. In such cases the question always is whether the prior art, including the subsidiary references, suggests doing the thing that the applicant has done. In re Stover, 32 C. C. P. A. (Patents) 823, 146 F. (2d) 299, 64 USPQ 186; In re Merkle, 32 C. C. P. A. (Patents) 1151, 150 F. (2d) 445, 66 USPQ 165. It may be true that the secondary references are not identical in detail with the disclosure of appellant but in our opinion they suggest doing the thing that appellant has done. Penniman claims an apparatus, but the specification shows a method of heating and cracking oil that is suggestively similar to the operation of the arrangement defined by appellant. Penniman provides means for the thermal circulation of oil, the use of baffles, and the cracking of oil by heat exchange with a heating medium circulated through the charge of oil in a vessel. If the steam in Penniman is not maintained at a regulated temperature and is not of the same “order” as the temperature of the charge, as argued by appellant, that feature of the process is" }, { "docid": "23276783", "title": "", "text": "Coleman, 29 USPQ 378, Bd. of Appeals). However, it is not to be disregarded for that reason alone and may be relied on when sufficiently convincing. See In re Holt, supra, and In re Mock, 28 C. C. P. A. (Patents) 919, 117 F. 2d 745, 48 USPQ 545, wherein this court relied on such affidavits in reversing the Board of Appeals. It appears from the record that appellants were faced with the problem of compacting powdered metal briquettes of substantially uniform density for relatively large articles so as to avoid warping, cracking and deforming upon sintering. They solved this problem by using a combination of an explosive force to generate pressure in a liquid surrounding the compact so as to suddenly compress it uni formly in all directions. Furthermore, from the record before us we think appellants’ process has important advantages over existing processes, as pointed out in the affidavit by Redmond, the factual portions of which are discussed above. We find nothing in the disclosure of McKenna or Madden, which either suggests the existence of the problem or how to solve it; nor do we find any such suggestions in Duryea et al. and Johnson, •the secondary references. The mere fact that elements of applicants’ •process may be found in various patents does not necessarily negative invention, In re Holt, supra. Moreover, , the concept of doing a thing, the result of which is new and useful and unexpected, must be considered along with the actual steps of doing it in considering the presence or absence of invention and patentability. In re Bisley, 39 C. C. P. A. (Patents) 982, 197 F. 2d 355, 94 USPQ 80. We concur with the dissenting member of the board that appellants have recog.nized, attacked and successfully solved this problem, achieving new, unobvious and unexpected results in a manner not suggested or disclosed to one skilled in the art by the cited references, either singly or in combination. In re Emile Frederick, Jr., 36 C. C. P. A. (Patents) 1123, 175 F. 2d 462, 82 USPQ 219. In view of the foregoing," }, { "docid": "22766604", "title": "", "text": "as practicable. The pertinence of the reference, if not obvious, must be clearly explained and the anticipated claim specified. It will be readily observed from a review of tbe pertinent teachings of tbe references cited herein by tbe examiners, that appellant’s second ground of appeal, as stated above, is without merit. This court, in In re Fridolph, 30 C. C. P. A. (Patents) 939, 134 F. (2d) 414, 57 USPQ 122, said: Appellant emphasizes that “there is no reference which shows the invention.” This may readily bé agreed to, but it is entirely proper to consider several references in connection with the allowance of patent claims. It is also inferred from appellant’s argument that some of the references should not be considered since they do not relate to bandages. In considering more than one reference, or a reference alleged not to be in the art involved, the question always is: does such art suggest doing the thing which the applicant has done? We think the art of record clearly suggests doing what appellant has done. The question as to whether or not an improvement over the prior art is such as to denote inventive quality was before the court in Seiberling Rubber Co. et al. v. I. T. S. Co., 134 F. (2d) 871, 57 USPQ 235. In that case the court correctly pointed out that while a valid patent may issue for a new combination even though all its elements be old, nevertheless this is true only where the quality of invention is exercised in the combining to bring about a new mode of operation and produce a new and useful result. In this connection, the court called attention to the well-established doctrine that a new or more extended application of the original thought or conception, a change only in form, proportions, or degree, which merely results in the substitution of equivalents doing the same thing by substantially the same means with better results, is not such “invention” as will sustain a patent over the prior art. None of the references cited by the examiners in the case at" }, { "docid": "8999506", "title": "", "text": "the inventive faculty, produce the structure embraced in the claim before us. Appellant contends that references may not properly be combined unless the cited art'teaches how to combine the cited structures, and in support of this contention cites the case of Ex parte Gee, 261 O.G. 800; C.D.1919, p. 49. This was a decision of a Commissioner of Patents which supports appellant’s contention, but the decision has never been followed by this court or by any other court so far 'as we are aware. It is true that the teachings of a patent may lead one skilled in the art away from an invention in controversy, in which case such teaching may be considered as bearing upon the availability of a reference, but such is not the case here. The only question is whether one skilled in the art, familiar with appellant’s British patent, upon examining the Baxter patent would, without the exercise of the inventive faculty, determine that the addition of Baxter’s baffle would be an improvement upon the structure disclosed by the British patent. That is the only consideration required to determine patentability where references are combined. In the case of In re Goepfrich, 136 F.2d 918, 920, 30 C.C.P.A.,Patents, 1181, the same contention was made that, before references may be combined to negative patentability, one or more of the references must teach the combination claimed. We rejected this contention and, in our opinion, said: “In the consideration of references, the question is, could one skilled in the art with the references before him make the combination of elements here claimed withoxit exercise of the inventive faculty, and that is the only question before us on this appeal.” If appellant’s contention should be sustained, then it would never be necessary to combine references to negative patentability, for if one of the references must teach the combination claimed that reference would be a complete anticipation of the invention and there would be no occasion to combine references. Finding no error in the decision appealed from, it is affirmed. Affirmed." }, { "docid": "20335884", "title": "", "text": "mechanical agitator drive system of the primary reference patents to Bateman et al. and Brandt et al. The examiner and the board considered this change to be a mere substitution of mechanical equivalents producing no new or unexpected result, and hence they were of the opinion that such substitutions did not involve invention. A test of equivalency is whether a substituted element operates in substantially the same way to produce substantially the same result as the element replaced. In re Husted, 17 C. C. P. A. (Patents) 1002, 39 F. (2d) 713, 5 U. S. Pat. Q. 397. Applying this test, we are in agreement with this holding of the Patent Office tribunals. We think it significant that, as noted by the board, appellant discloses a modification of the claimed spray device wherein he shows a mechanical belt and pulley agitator drive system similar to that shown by Bateman et al. Where an applicant’s own specification indicates an equivalency between two different things, one of which is shown in the prior art, the applicant is not in a favorable position to argue that invention lies in the use of the other, although there might, perhaps, be some exceptions in unusual circumstances. See In re Yount, 36 C. C. P. A. (Patents) 775, 171 F. (2d) 317, 80 USPQ 141, and In re Withington, 26 C. C. P. A. (Patents) 1290, 104 F. (2d) 192, 41 USPQ 742. We concur with the board’s inference from this alternative disclosure that the appellant himself must have regarded the mechanical and hydraulic drives as equivalents. As to claim 5, which also recites the shut-off and relief valves, we agree with the board and the examiner that no invention was involved in the use of these features as is clearly taught in the Knapp reference, which discloses a very similar device. In the light of the foregoing, we agree with the Board of Appeals that appellant has not displayed the exercise of invention in producing his allegedly new combination. The old and known elements' used by appellant do not perform any new or unexpected function" } ]

[ { "docid": "22414191", "title": "", "text": "the area of municipal provision of sewage services. These statutory provisions plainly show that “ ‘the legislature contemplated the kind of action complained of.’” Lafayette, supra, at 415 (quoting the decision of the Court of Appeals, 532 F. 2d 431, 434 (CA5 1976)). This is sufficient to satisfy the “clear articulation” requirement of the state action test. c The Towns further argue that the “clear articulation” requirement of the state action test requires at least that the City show that the State “compelled” it to act. In so doing, they rely on language in Cantor v. Detroit Edison Co., 428 U. S. 579 (1976), and Goldfarb v. Virginia State Bar, 421 U. S. 773 (1975). We disagree with this contention for several reasons. Cantor and Goldfarb concerned private parties — not municipalities — claiming the state action exemption. This fact distinguishes those cases because a municipality is an arm of the State. We may presume, absent a showing to the contrary, that the municipality acts in the public interest. A private party, on the other hand, may be presumed to be acting primarily on his or its own behalf. None of our cases involving the application of the state action exemption to a municipality has required that compulsion be shown. Both Boulder, 455 U. S., at 56-57, and Lafayette, 435 U. S., at 416-417, spoke in terms of the State’s direction or authorization of the anticompetitive practice at issue. This is so because where the actor is a municipality, acting pursuant to a clearly articulated state policy, compulsion is simply unnecessary as an evidentiary matter to prove that the challenged practice constitutes state action. In short, although compulsion affirmatively expressed may be the best evidence of state policy, it is by no means a prerequisite to a finding that a municipality acted pursuant to clearly articulated state policy. IV Finally, the Towns argue that as there was no active state supervision, the City may not depend on the state action exemption. The Towns rely primarily on language in Lafayette. It is fair to say that our cases have not been" } ]

[ { "docid": "12718353", "title": "", "text": "be attributed to Congress.” Id. at 351, 63 S.Ct. at 313. Whatever may or may not be said of the relationship, if any, between Article VI and the 1942 holding of the Court in Parker, it would appear clear that Parker created an exception. That exception is limited to state legislative action. Indeed, the Court said in Parker: “True, a state does not give immunity to those who violate the Sherman Act by authorizing them to violate it, or by declaring that their action is lawful,” citing Northern Securities Co. v. United States, 193 U.S. 197, 332, 344-47, 24 S.Ct. 436, 454, 459-61, 48 L.Ed. 679 (1904), 317 U.S. at 351, 63 S.Ct. at 314. Thirty-two years after Parker, the Court decided Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975) , saying, “anticompetitive activities must be compelled by direction of the State acting as a sovereign,” Id. at 791, 95 S.Ct. at 2015. In Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976) , the Court reaffirmed that to be exempt anticompetitive activity must implement a statewide policy. Id. at 585, 96 S.Ct. at 3115. In Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), the Court said antitrust immunity can exist where a policy requiring anticompetitive conduct is part of a comprehensive regulatory scheme, clearly articulated, affirmatively expressed as state policy, and actively supervised by the state as policymaker. Id. at 362, 97 S.Ct. at 2698. In City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978), the Court addressed state action immunity for cities. After noting the strong presumption against implied immunity, Id. at 398, 98 S.Ct. at 1129, the Court ruled that municipalities are not automatically immune solely because they are governmental entities, Id. at 411, 98 S.Ct. at 1136, and that it must appear “that the legislature contemplated the kind of action complained of.” Id. at 415, 98 S.Ct. at 1138. In my view, Colorado home rule" }, { "docid": "7293615", "title": "", "text": "cases which have confronted the issue of immunity for post exchanges in other than the antitrust context. Both lines of cases require, in my view, a result different from that reached by the majority. In Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), the Supreme Court held that California, whose agricultural pro-ration program arguably violated the antitrust laws, was immune from liability because the antitrust laws were not intended to “restrain state action or official action directed by a state.” 317 U.S. at 351, 63 S.Ct. at 313. Despite that holding, the progeny of Parker v. Brown have made it clear that “it is not every governmental act that points a path to an antitrust shelter.” Woods Exploration & Pro. Co. v. Aluminum Co. of Amer., 438 F.2d 1286, 1294 (5th Cir. 1971). See California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980); City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978); Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976); Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975). In City of Lafayette v. Louisiana Power & Light Co., the Supreme Court refused to find immunity from antitrust liability for a city which owned and operated an electric utility system, although the city was an instrumentality of the State. Because the city was performing a business rather than a governmental function, the Court found the contention that its goal was not private profit but public service to be “only partly correct. Every business enterprise, public or private, operates its business in furtherance of its own goals” and with “impact . on other individuals and business enterprises with which they inter-relate as purchasers, suppliers, and sometimes . as competitors.” 435 U.S. at 403, 98 S.Ct. at 1132. The Court concluded that the city’s business enterprise was not exempt under Parker because it was neither anti-competitive conduct engaged in as an act of government" }, { "docid": "7880861", "title": "", "text": "Sherman Act and the Virginia Antitrust Act. 15 U.S.C. §§ 1 and 2; Va.Code §§ 59.1-9.5, 9.6; § 18.2-500. The City contends that it is immune to antitrust liability under the Parker doctrine. Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943). Although the parties are in dispute as to the law, there is no real controversy as to the applicable facts in this case. Therefore, the Court will examine the applicable caselaw. 1. State Action Doctrine The state action doctrine was established by the Supreme Court in Parker v. Brown, supra. The rationale for Parker was that the Sherman Act did not restrain state legislative action. The Supreme Court and the Courts of Appeals are currently grappling with the question of when state action immunity is available to actors other than the state itself. In City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978) the plurality held that a municipality acquired antitrust immunity when it acted pursuant to a “clearly articulated and affirmatively expressed” state policy to displace competition. Id. at 410, 98 S.Ct. at 1135. The second prong of the state action immunity test requires state supervision of the challenged activities allegedly performed by the non-state actor. California Retail Liquor Dealers Association v. Mid-cal Aluminum, Inc., 445 U.S. 97, 99, 100 S.Ct. 937, 940, 63 L.Ed.2d 233 (1980); Cantor v. Detroit Edison Co., 428 U.S. 579, 582, 96 S.Ct. 3110, 3113, 49 L.Ed.2d 1141 (1976). The City contends that the supervision prong applies only to private actors but does not apply to municipalities. The Supreme Court in Boulder, expressly reserved the question of whether a local municipality must satisfy the “active state supervision” requirement. Community Communications Co. v. Boulder, 455 U.S. 40, 51-52 n. 14 (majority), 71 n. 6 (dissent), 102 S.Ct. 835, 840-841 n. 14, 851 n. 6, 70 L.Ed.2d 810. Neither party has cited any Supreme Court case which has resolved this issue. In Hoover v. Ronwin, — U.S. -, 104 S.Ct. 1989, 80 L.Ed.2d 590 (1984) the defendant was a state" }, { "docid": "13024084", "title": "", "text": "City of Eau Claire, supra. Accordingly, the court concludes that assuming the Authority’s activities in connection with selection and employment of lawyers on bond issues amounts to anti-competitive activity within the meaning of the Sherman Act, those activities are shielded by the state action immunity of Parker v. Brown. Cases subsequent to Parker v. Brown have made clear that not only the state itself is immune but also private parties who act pursuant to the state’s policy decisions. See Southern Motor Carriers Rate Conference, Inc. v. United States, 471 U.S. 48, 105 S.Ct. 1721, 85 L.Ed.2d 36 (1985), on remand, 764 F.2d 748 (11th Cir.1985). In Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), the court held that a minimum fee schedule issued under the affirmative direction of the Arizona Supreme Court and enforced by its disciplinary rules constituted a restraint “compelled by direction of the state acting as sovereign” and thus the restraint was immune and the private lawyers were compelled to abide by the minimum fee schedule. On the contrary, in Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975) and Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976), the court held that the Sherman Act was violated by publication of a minimum fee schedule issued by a county bar association and enforced by the state bar because there was no compelled state activities and that mere approval by a state rate making commission of a private utility’s tariff which violated the Sherman Act was not compelled state activity beyond the reach of the Sherman Act. As the court pointed out in Southern Motor Carriers, supra, the state action doctrine does not require a showing that the state compelled private anti-competitive conduct in connection with a state agency; a showing that the state authorized such private conduct is sufficient. See City of Lafayette v. Louisiana Power & Light Co., supra. Here the selection of counsel is clearly made by the Authority, the public agency. The private parties," }, { "docid": "17280034", "title": "", "text": "and the legislative history of the Sherman Act. We find nothing in the language of the Sherman Act or in its history which suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature. In a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state’s control over its officers and agents is not lightly to be attributed to Congress. Id. at 350-51, 63 S.Ct. at 313. After more than thirty years, the Court returned to the state action doctrine in a series of cases. Goldfarb v. Virginia State Bar, 421 U.S. 773, 791, 95 S.Ct. 2004, 2015, 44 L.Ed.2d 572 (1975) (minimum fee schedule issued by county bar association and enforced by state bar, an administrative agency, not protected by state action doctrine because fee schedule not “compelled by direction of the State acting as a sovereign”); Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976) (state’s neutral acceptance of public utility’s program of providing free light bulbs not protected by state action doctrine); Bates v. Arizona State Bar, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977) (state action doctrine protects state supreme court enforcement of disciplinary rules prohibiting attorney advertising); City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978) (state action doctrine protects acts of municipalities only where undertaken pursuant to clearly articulated state policy of displacing competition by regulation); New Motor Vehicle Board v. Orrin W. Fox Co., 439 U.S. 96, 99 S.Ct. 403, 58 L.Ed.2d 361 (1978) (same); California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980) {Midcal) (state legislated resale wine-pricing maintenance program not protected by state action doctrine because, although restraint clearly articulated and affirmatively expressed as state policy, not actively supervised by the state itself). In Sound, Inc. v. American Telephone & Telegraph Co., 631 F.2d" }, { "docid": "12988177", "title": "", "text": "with foreign nations.” 15 U.S.C. § 1. The Act also makes it a felony to “monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations.” Id. § 2. In this case, the plaintiffs claim that the defendants violated the Act by trying to maintain Ameritech’s dominance in the pay telephone service market in the Detroit metropolitan area. The defendants contend that they are exempt from federal antitrust laws under the state action doctrine. In the landmark case of Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), the Supreme Court, relying on principles of federalism and state sovereignty, held that states as sovereigns are exempt from antitrust liability under the Sherman Antitrust Act. Id. at 352, 63 S.Ct. 307. Because municipalities are not sovereign entities, they are not automatically exempt from the antitrust laws under Parker. Town of Hallie v. City of Eau Claire, 471 U.S. 34, 38, 105 S.Ct. 1713, 85 L.Ed.2d 24 (1985); Community Communications Co. v. City of Boulder, 455 U.S. 40, 50-51, 102 S.Ct. 835, 70 L.Ed.2d 810 (1982); City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 412-13, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978). However, a state acting in its sovereign capacity can immunize municipalities from antitrust liability by authorizing anticompetitive municipal activities. In Boulder, the Supreme Court adopted in the context of municipal action the two-prong test for antitrust immunity that a plurality of the Court had announced in Lafayette. Boulder, 455 U.S. at 51, 102 S.Ct. 835 (citations omitted). Under this test, municipalities are exempt from antitrust laws if they can establish (1) a “clearly articulated and affirmatively expressed” state policy to authorize anticom-petitive conduct and (2) “active[] supervision]” by the state itself. Lafayette, 435 U.S. at 410, 98 S.Ct. 1123. Three years after Boulder, the Hallie Court held that a municipality was required to show only that a clearly articulated state policy authorized it to engage in anticompetitive conduct. Hallie, 471 U.S." }, { "docid": "17280035", "title": "", "text": "96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976) (state’s neutral acceptance of public utility’s program of providing free light bulbs not protected by state action doctrine); Bates v. Arizona State Bar, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977) (state action doctrine protects state supreme court enforcement of disciplinary rules prohibiting attorney advertising); City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978) (state action doctrine protects acts of municipalities only where undertaken pursuant to clearly articulated state policy of displacing competition by regulation); New Motor Vehicle Board v. Orrin W. Fox Co., 439 U.S. 96, 99 S.Ct. 403, 58 L.Ed.2d 361 (1978) (same); California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980) {Midcal) (state legislated resale wine-pricing maintenance program not protected by state action doctrine because, although restraint clearly articulated and affirmatively expressed as state policy, not actively supervised by the state itself). In Sound, Inc. v. American Telephone & Telegraph Co., 631 F.2d 1324 (8th Cir. 1980), this court distilled from the above cases four factors relevant to the application of the state action doctrine. These factors were applied by the district court in its 1980 ruling that the Blues’ conduct was protected under the state action doctrine. The law regarding the state action doctrine has not remained static since the district court’s rulings. In Southern Motor Carriers Rate Conference, Inc. v. United States, 471 U.S. 48, 105 S.Ct. 1721, 85 L.Ed.2d 36 (1985) (Southern Motor Carriers), and 32) Liquor Corp. v. Duffy, 479 U.S. 335, 107 S.Ct. 720, 93 L.Ed.2d 667 (1987) (32) Liquor Corp.), the Court clarified the doctrine by holding that only the two factors considered in Midcal make up the test for protection under the state action doctrine: “First, the challenged restraint must be ‘one clearly articulated and affirmatively expressed as state policy’; second, the policy must be ‘actively supervised’ by the State itself.” Midcal, 445 U.S. at 105, 100 S.Ct. at 943 (quoting City of Lafayette v. Louisiana Power & Light Co., 435" }, { "docid": "5312877", "title": "", "text": "(1984) (reversing the lower court’s determination that state-action immunity should not be decided on a Rule 12(b)(6) motion to dismiss). . See FTC v. Ticor Title Ins., 504 U.S. 621, 632-33, 112 S.Ct. 2169, 2176-77, 119 L.Ed.2d 410 (1992); City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 370, 111 S.Ct. 1344, 1348-49, 113 L.Ed.2d 382 (1991); Patrick v. Burget, 486 U.S. 94, 99, 108 S.Ct. 1658, 1662, 100 L.Ed.2d 83 (1988); 324 Liquor Corp. v. Duffy, 479 U.S. 335, 344, 107 S.Ct. 720, 725, 93 L.Ed.2d 667 (1987); Southern Motor Carriers Rate Conference, Inc. v. United States, 471 U.S. 48, 55-57, 105 S.Ct. 1721, 1725-27, 85 L.Ed.2d 36 (1985); Town of Hattie v. City of Eau Claire, 471 U.S. 34, 38, 105 S.Ct. 1713, 1716, 85 L.Ed.2d 24 (1985); Hoover, 466 U.S. at 567-68, 104 S.Ct. at 1994-95; Community Communications Co. v. City of Boulder, 455 U.S. 40, 48-49, 102 S.Ct. 835, 839-40, 70 L.Ed.2d 810 (1982); California Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc., 445 U.S. 97, 103-04, 100 S.Ct. 937, 942-43, 63 L.Ed.2d 233 (1980); City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 408-09, 98 S.Ct. 1123, 1134-35, 55 L.Ed.2d 364 (1978); Bates v. State Bar, 433 U.S. 350, 359, 97 S.Ct. 2691, 2696-97, 53 L.Ed.2d 810 (1977); Cantor v. Detroit Edison Co., 428 U.S. 579, 585-91, 96 S.Ct. 3110, 3115-18, 49 L.Ed.2d 1141 (1976); Goldfarb v. Virginia State Bar, 421 U.S. 773, 788, 95 S.Ct. 2004, 2013-14, 44 L.Ed.2d 572 (1975). . Exemption from the \"active supervision” requirement is fortunate from the Board's perspective because its rulemaking process was not actively supervised. Despite the legislature's reservation of power to review the Board’s proposals for new rules, rule changes can take effect without any active oversight by the legislature. La.Rev.Stat.Ann. § 49:968 (West 1987 & Supp.1998). That is in fact what happened regarding the rules challenged in this case, and the situation is indistinguishable from the \"negative option system” which was determined by the Supreme Court not to constitute active state supervision. See Ticor, 504 U.S. at 629, 638—40, 112" }, { "docid": "4612397", "title": "", "text": "there is a sufficient restraint on interstate commerce in those cases or whether the state action issue should precede all other inquiries. In Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), the Supreme Court, relying on principles of federalism and state sovereignty, refused to construe the Sherman Act as applying to the anti-competitive conduct of a State acting through its legislature. 317 U.S. at 350-51, 63 S.Ct. at 313-14. Instead, the Court found that the Sherman Act was intended to prohibit private, not public, restraints on trade, and it refused to “infer an intent to ‘nullify a state’s control over its officers and agents’ in activities directed by the legislature.” Town of Hallie v. City of Eau Claire, 471 U.S. 34, 38, 105 S.Ct. 1713, 1716, 85 L.Ed.2d 24 (1985). Later in a series of decisions, the Supreme Court considered the state action doctrine as it applies to conduct of local governmental units. See Town of Hallie, 471 U.S. 34, 105 S.Ct. 1713, 85 L.Ed.2d 24; City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1982); Community Communications Co. v. City of Boulder, 455 U.S. 40, 102 S.Ct. 835, 70 L.Ed.2d 810 (1982). “The Court held that local governmental conduct is not necessarily exempt from federal antitrust laws since local governments, unlike states, are not sovereigns; rather, local governmental conduct is exempt when taken pursuant to a clearly articulated state policy to displace competition with regulation of monopoly public service.” LaSalle National Bank of Chicago v. DuPage County, 777 F.2d 377, 380-81 (7th Cir. 1985). In California Retail Liquor Dealers Association v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980), the Supreme Court applied a two-pronged test to a case in which the state action exemption was claimed by a private party. Under the first prong, the challenged activity must be one clearly articulated and affirmatively expressed as state policy. Southern Motor Carriers Rate Conference v. United States, 471 U.S. 48, 105 S.Ct. 1721, 85 L.Ed.2d 36 (1985). Under the second" }, { "docid": "3069728", "title": "", "text": "competition with regulation or monopoly public service.” Lafayette, 435 U.S. at 413, 98 S.Ct. at 1137 (emphasis added). “Because it is not itself sovereign, a municipality falls within the Sherman Act’s prohibition of private anticompetitive conduct unless the municipality can show that its activities were authorized by the State 'pursuant to a state policy to displace competition with regulation or monopoly public service/ ” Independent Taxicab Drivers’ Employees v. Greater Houston Transportation Co., 760 F.2d 607, 609 (5th Cir.1985) (citing Lafayette, 435 U.S. at 413, 98 S.Ct. at 1137). The Lafayette Court emphasized that its decision meant “only that when the state itself has not ordered or authorized an anticompetitive practice, the state’s subdivisions in exercising their delegated power must obey the antitrust laws.” 435 U.S. at 416, 98 S.Ct. at 1138. The question whether municipalities, like private parties, see California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 105-06, 100 S.Ct. 937, 943-44, 63 L.Ed.2d 233 (1980), must also show that the state exercised active supervision over the challenged conduct was expressly left open. In a subsequent decision, the Supreme Court summarized the Parker doctrine as it applies to municipalities: A municipal act “cannot be exempt from antitrust scrutiny unless it constitutes the action of the state ... itself in its sovereign capacity ..., or unless it constitutes municipal action in furtherance or implementation of clearly articulated and affirmatively expressed state policy.” Community Communications Co. v. Boulder, 455 U.S. 40, 52, 102 S.Ct. 835, 841, 70 L.Ed.2d 810 (1982) (citations omitted). After these decisions, the most substantial area of controversy in application of the Parker doctrine centered on the degree of clarity with which a state legislative policy must be articulated for a municipality’s actions to qualify for the protection of the Parker doctrine. This question was addressed by the Court in Town of Hallie v. City of Eau Claire, 471 U.S.-, 105 S.Ct. 1713, 85 L.Ed.2d 24 (1925). After discussing the particular conduct challenged and the applicable statutes, the Court concluded that the statutes sufficiently articulated and affirmatively expressed the state policy to displace competition." }, { "docid": "21848489", "title": "", "text": "715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). See also Tinker v. DeMaria Porsche-Audi, Inc., 632 F.2d 520, 523 (5th Cir.1980). Appellants contest only the dismissal of their antitrust claims. . See City of Lafayette, 435 U.S. at 415, 98 S.Ct. at 1138 (\"a specific, detailed legislative authorization” of monopoly service need not exist to infer the necessary state intent”); see also Hoover v. Ronwin, — U.S. -, 104 S.Ct. 1989, 1995, 2001 & n. 33, 80 L.Ed.2d 590 (1984). . In this respect, deciding whether Parker immunity applies to anticompetitive municipal conduct differs from deciding whether Parker applies to the anticompetitive conduct of private parties. Compare City of Eau Claire, 105 S.Ct. at 1719-21 with Southern Motor Carriers Rate Conference, Inc. v. United States, - U.S. -, 105 S.Ct. 1721, 1717, 85 L.Ed.2d 36 (1985) (private parties, and state agencies or officials regulating the conduct of private parties, fall within Parker only upon the satisfaction of two criteria: \"First, the challenged restraint must be ‘one clearly articulated and affirmatively expressed as state policy.’ Second, the State must supervise actively any private anticompetitive conduct.” (citations omitted)); see California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980); Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976). . The City has for years seen fit to exercise this discretion. See Houston, Tex., Code of Ordinances §§ 45-1 to -91 (1968). . The district court noted that the City’s initial embrace of exclusivity was motivated by the dearth of adequate ground transportation facilities that accompanied the opening of Intercontinental in 1969. . Similarly, it is of limited significance that the statute authorizing municipal airport management states that the municipality's actions shall not be \"inconsistent with, or contrary to, any Act of the Congress of the United States____” Tex.Rev.Civ.Stat.Ann. Art. 46d-7(c) (West.Supp. 1985). The relevant question is not whether the City has transgressed federal law, but whether the Sherman & Clayton Acts apply to the City at all. . Appellants also argue that Yellow’s conduct falls" }, { "docid": "12864884", "title": "", "text": "when the state “sanctions” anticompetitive behavior of the municipality — a state action defense may be available to the municipality. Community Communications Co. v. City of Boulder, 455 U.S. 40, 51, 102 S.Ct. 835, 840, 70 L.Ed.2d 810 (1982); City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 413, 98 S.Ct. 1123,1136-1137, 55 L.Ed.2d 364 (1978) (plurality opinion). Under the foregoing analysis of the state action doctrine, we have little difficulty in holding that the activities of appellants are not immune from Sherman Act coverage. Specifically, a defense of state action fails because this litigation was brought against private defendants and none of the states in question compels the ratemaking bureaus to set rates collectively. Because the anticompetitive practices challenged by the government are undertaken at the individual election of the carriers and the rate bureaus, appellants fail to pass the threshold test established in Goldfarb. Thus, appellants’ action cannot be said to constitute state action. Appellants, however, urge that state action analysis has been changed in their favor by the recent Supreme Court decision in California Retail Liquor Dealers Association v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980). Midcal involved a challenge under the Sherman Act to a California statute that required wine producers and wholesalers to file fair trade contracts or price schedules with the state. Under the statute, wholesalers could not resell wine to retailers at prices below those on the contracts or schedules. In order to evaluate whether the state defendant California Department of Alcoholic Beverage Control was state action immune, the Court briefly reviewed several of the state action cases discussed above and then stated that “[t]hese decisions establish two standards for antitrust immunity under Parker. First, the challenged restraint must be ‘one clearly articulated and affirmatively expressed as state policy’; second, the policy must be ‘actively supervised’ by the state itself. City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 410 [98 S.Ct. 1123, 1135, 55 L.Ed.2d 364] (1978) (opinion of Brennan, J.).” 445 U.S. at 105, 100 S.Ct. at 943. California’s" }, { "docid": "4612398", "title": "", "text": "Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1982); Community Communications Co. v. City of Boulder, 455 U.S. 40, 102 S.Ct. 835, 70 L.Ed.2d 810 (1982). “The Court held that local governmental conduct is not necessarily exempt from federal antitrust laws since local governments, unlike states, are not sovereigns; rather, local governmental conduct is exempt when taken pursuant to a clearly articulated state policy to displace competition with regulation of monopoly public service.” LaSalle National Bank of Chicago v. DuPage County, 777 F.2d 377, 380-81 (7th Cir. 1985). In California Retail Liquor Dealers Association v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980), the Supreme Court applied a two-pronged test to a case in which the state action exemption was claimed by a private party. Under the first prong, the challenged activity must be one clearly articulated and affirmatively expressed as state policy. Southern Motor Carriers Rate Conference v. United States, 471 U.S. 48, 105 S.Ct. 1721, 85 L.Ed.2d 36 (1985). Under the second prong, the State must actively supervise any private anti-competitive conduct. Id. at 57, 105 S.Ct. at 1727. “This supervision requirement prevents the state from frustrating the national policy in favor of competition by casting a ‘gauzy cloak of state involvement’ over what is essentially private anticompetitive conduct.” Id. Although the cases have not clearly defined the parameters of this “clear articulation” prong, they have provided some guidance. LaSalle, 777 F.2d at 381. It is not sufficient that a state merely have granted local governments general authority to govern local affairs. Community Communications Co. v. City of Boulder, 455 U.S. 40, 102 S.Ct. 835, 70 L.Ed.2d 810 (1982). On the other hand, the state need not specifically authorize conduct with anti-competitive effects. Town of Hallie, 471 U.S. at 42-43, 105 S.Ct. at 1718. It is sufficient that anticompetitive effects are a foreseeable consequence of engaging in the authorized activity. Id. at 43, 105 S.Ct. at 1718-19. “In considering the [allegedly anticompetitive conduct] we will first determine whether any state legislative act(s) authorizes the challenged conduct and" }, { "docid": "11436729", "title": "", "text": "Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), the Supreme Court held that federal antitrust laws do not prohibit a state, as sovereign, from imposing anticompetitive restraints “as an act of government.” Id. at 352, 63 S.Ct. at 314. Recent Supreme Court cases identify two criteria for application of Parker immunity: (1) “the challenged restraint must be ‘one clearly articulated and affirmatively expressed as state policy’ ” and (2) “the policy must be ‘actively supervised’ by the State itself.” California Retail Liquor Dealers Ass’n v. Midcal Aluminum Inc., 445 U.S. 97, 105, 100 S.Ct. 937, 943, 63 L.Ed.2d 233 (1980), quoting City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978) (opinion of Brennan, J.). See also New Motor Vehicle Board of California v. Orrin W. Fox Co., 439 U.S. 96, 109, 99 S.Ct. 403, 412, 58 L.Ed.2d 361 (1978). Even assuming that appropriate circumstances might justify extension of this immunity to conduct by a private party, cf. Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976); Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975), both of the prerequisites are lacking here. To begin with, there is no articulation whatever of a state policy underlying the challenged provision of NS-11. The fact that a political subdivision of the state is a party to the contract does not transform the provisions of the contract into state policy. Moreover, even if the contract as a whole had been entered into by PASNY as agent of the sovereign in accordance with “clearly articulated and affirmatively expressed” state policy, there is no suggestion that the challenged restraint itself was mandated by, or even related to, state policy. The petition makes clear that the restrictive provision was desired by NYSEG, and there is no hint that it resulted from state policy. Even if the restrictive provision had been suggested by PASNY rather than NYSEG, the Commission would not be precluded from considering antitrust policy since “[i]t is not enough that" }, { "docid": "4296141", "title": "", "text": "Congress.” Id. at 350-51, 63 S.Ct. at 313-14 (emphasis added). See also Hoover v. Ronwin, 104 S.Ct. at 1995. Since the seminal decision in Parker, the Supreme Court has further refined the doctrine of “state action.” See, e.g., Goldfarb v. Virginia State Bar, 421 U.S. 773, 791, 95 S.Ct. 2004, 2015, 44 L.Ed.2d 572 (1975) (state bar association’s enforcement of a minimum legal fee schedule not exempt under Parker because not compelled by state); Cantor v. Detroit Edison Co., 428 U.S. 579, 591-92, 96 S.Ct. 3110, 3117-18, 49 L.Ed.2d 1141 (1976) (opinion of Stevens, J.) (private utility company’s regulation of light bulbs, approved by state and required to be continued until new tariff is filed, not exempt under Parker); Bates v. State Bar of Arizona, 433 U.S. 350, 362-63, 97 S.Ct. 2691, 2698-99, 53 L.Ed.2d 810 (1977) (enforcement of clearly articulated disciplinary rules by state supreme court, acting in its legislative capacity, exempt under Parker); Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 415, 98 S.Ct. 1123, 1138, 55 L.Ed.2d 364 (1978) (opinion of Brennan, J.) (city’s operation of electrical utility system exempt under Parker if state contemplated the action complained of when it authorized city to operate in that area); New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 439 U.S. 96, 109, 99 S.Ct. 403, 411, 58 L.Ed.2d 361 (1978) (state board’s enforcement of a clearly ar ticulated, affirmatively expressed state regulation of automobile dealerships is exempt under Parker); California Liquor Dealers, 445 U.S. at 105-06, 100 S.Ct. at 943-44 (wine wholesaler’s enforcement of a clearly articulated state system for wine pricing is not exempt under Parker because the state neither establishes nor reviews the price schedules, nor regulates the terms of fair trade contracts); Community Communications Co. v. Boulder, 455 U.S. 40, 55, 102 S.Ct. 835, 842, 70 L.Ed.2d 810 (1982) (municipality’s enforcement of its cable television ordinance is not exempt under Parker because the state’s position is one of mere neutrality respecting the municipality’s actions). Most recently, the Court in Hoover v. Ronwin, reaffirmed its rationale in Parker that “when a state" }, { "docid": "23330673", "title": "", "text": "state subdivision is entitled to state action immunity only when it acts pursuant to a “clearly articulated and affirmatively expressed” state policy that authorizes its actions. City of Lafayette v. La. Power & Light Co., 435 U.S. 389, 410-13, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978); see also Town of Hattie v. City of Eau Claire, 471 U.S. 34, 38-40, 105 S.Ct. 1713, 85 L.Ed.2d 24 (1985). The requisite showing of authority has two components: first, the subdivision must have “authority to regulate”; second, it must have “authority to suppress competition.” Elec. Inspectors, Inc. v. Village of E. Hitts, 320 F.3d 110, 118 (2d Cir.2003) (quoting City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 372, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991)). So long as the subdivision’s anti-competitive activities are a “foreseeable consequence” of the state delegation, the “clear articulation” standard has been met. Cine I2nd St. Theater Corp. v. Nederlander Org., Inc., 790 F.2d 1032, 1043 (2d Cir.1986) (citing Town of Hattie, 471 U.S. at 43, 105 S.Ct. 1713). State action immunity may also extend to private entities, when their particular anticompetitive acts are authorized by the State and further state regulatory policies. Patrick v. Burget, 486 U.S. 94, 99-100, 108 S.Ct. 1658, 100 L.Ed.2d 83 (1988). The two-pronged test for extending state action immunity to a private party is commonly referred to as the “Midcal test,” following its articulation in California Retail Liquor Dealers Ass’n v. Midcal Aluminum, 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980). In addition to a clearly articulated state policy, a private party seeking state action immunity under Mid-cal must show active supervision of its anticompetitive conduct by the state. Cine 42nd St. Theater Corp., 790 F.2d at 1043(citing S. Motor Carriers Rate Conference, Inc. v. United States, 471 U.S. 48, 61-62, 105 S.Ct. 1721, 85 L.Ed.2d 36). The requirement of active state supervision “is one way of ensuring that the actor is engaging in the challenged conduct pursuant to state policy.” Town of Hattie, 471 U.S. at 46, 105 S.Ct. 1713. This requirement exists because absent supervision, “there" }, { "docid": "15858818", "title": "", "text": "County Bar puts it, anticompetitive conduct is “prompted” by state action; rather, anticompetitive activities must be compelled by direction of the State acting as a sovereign. Id. at 790-91, 95 S.Ct. at 2014-15. Subsequent Supreme Court decisions underscore the distinction between Bates and Goidfarb. The Court has repeatedly emphasized in these more recent decisions that for the state-action exemption to apply the challenged restraint must be clearly articulated and affirmatively expressed as state policy and be actively supervised by the state itself. See, e.g., City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 410-13, 98 S.Ct. 1123, 1135-36, 55 L.Ed.2d 364 (1978); New Motor Vehicle Board of California v. Orrin W. Fox Co., 439 U.S. 96, 109, 99 S.Ct. 403, 411, 58 L.Ed.2d 361 (1978); California Retail Liquor Dealers Association v. Midcal Aluminum, Inc., 445 U.S. 97, 105, 100 S.Ct. 937, 943, 63 L.Ed.2d 233 (1980); Community Communications Co. v. City of Boulder, 455 U.S. 40, 48-51, 102 S.Ct. 835, 839-41, 70 L.Ed.2d 810 (1982). The failure to meet either requirement precludes application of the antitrust immunity. Midcal, 445 U.S. at 105, 100 S.Ct. at 943. Viewing the present case at this stage of the proceedings in light of the Court’s state-action requirements, we conclude that the challenged grading procedure fails to qualify for antitrust immunity. It has not been established that the alleged restraint was “clearly articulated and affirmatively expressed as state policy,” Midcal’s first requirement. Id. Like the defendants in Goidfarb, the defendants here have no statute or Supreme Court Rule to point to as directly requiring the challenged grading procedure. See 421 U.S. at 790-91, 95 S.Ct. at 2014-15. The fact that the Arizona Supreme Court has delegated to the Committee the general authority to examine applicants to determine if they are qualified to practice law and reviews the Committee’s recommendations regarding admission does not alone clothe the. Committee’s unilateral grading policies with blanket immunity from the antitrust laws. “The national policy in favor of competition cannot be thwarted by casting such a gauzy cloak of state involvement” over actions of the Committee that" }, { "docid": "15368372", "title": "", "text": "55 L.Ed.2d 364 (1978), the Court held that a municipality could be sued under the antitrust laws for refusing to sell gas and water to residents living outside the city limits who would not also agree to purchase electricity from the city. A plurality of the Court advanced the view that a municipality’s anticompetitive conduct is not shielded from antitrust scrutiny, unless the municipality acts “pursuant to [a] state policy to displace competition with regulation or monopoly public service.” Id. at 413, 98 S.Ct. at 1136 (plurality opinion). The plurality emphasized that the state policy pursued by the municipality must be “clearly articulated and affirmatively expressed.” See id. at 410, 98 S.Ct. at 1135 (plurality opinion). A majority of the Court confirmed the Lafayette plurality’s opinion in Community Communications Co. v. City of Boulder, 455 U.S. 40, 51, 102 S.Ct. 835, 840, 70 L.Ed.2d 810 (1982). Two questions confront us. The first is whether the City acted under a “clearly articulated and affirmatively expressed” state policy displacing competition with regulation or monopoly in the area of cable television. The second question is whether our holding with respect to the First Amendment deprives the City, as PCI contends, of any state action immunity under the antitrust laws. At the time of this appeal, we faced a third question: whether the state must actively supervise policies authorizing anti-competitive conduct by its municipalities. See California Retail Liquor Dealers Association v. Midcal Aluminum, Inc., 445 U.S. 97, 105-06, 100 S.Ct. 937, 943-44, 63 L.Ed.2d 233 (1980) (imposing requirement of active state supervision over policies authorizing private anticompetitive conduct); Community Communications Co., 455 U.S. at 51 n. 14, 102 S.Ct. at 841 n. 14) (leaving open the question whether the active supervision requirement applies to municipal defendants as well). The Supreme Court has since answered this question negatively, see Town of Hallie v. City of Eau Clair, — U.S. —, 105 S.Ct. 1713, 1720-21, — L.Ed.2d—(1985), and therefore, we need not address it further. A. “Clearly Articulated and Affirmatively Expressed” State Policy Following Lafayette and Boulder, this circuit has developed a two part test for" }, { "docid": "7880862", "title": "", "text": "articulated and affirmatively expressed” state policy to displace competition. Id. at 410, 98 S.Ct. at 1135. The second prong of the state action immunity test requires state supervision of the challenged activities allegedly performed by the non-state actor. California Retail Liquor Dealers Association v. Mid-cal Aluminum, Inc., 445 U.S. 97, 99, 100 S.Ct. 937, 940, 63 L.Ed.2d 233 (1980); Cantor v. Detroit Edison Co., 428 U.S. 579, 582, 96 S.Ct. 3110, 3113, 49 L.Ed.2d 1141 (1976). The City contends that the supervision prong applies only to private actors but does not apply to municipalities. The Supreme Court in Boulder, expressly reserved the question of whether a local municipality must satisfy the “active state supervision” requirement. Community Communications Co. v. Boulder, 455 U.S. 40, 51-52 n. 14 (majority), 71 n. 6 (dissent), 102 S.Ct. 835, 840-841 n. 14, 851 n. 6, 70 L.Ed.2d 810. Neither party has cited any Supreme Court case which has resolved this issue. In Hoover v. Ronwin, — U.S. -, 104 S.Ct. 1989, 80 L.Ed.2d 590 (1984) the defendant was a state actor so the Supreme Court did not need to reach the supervision prong. A number of Circuit Courts have concluded that the state supervision prong should not be required of municipalities. See, e.g., Scott v. City of Sioux City, 736 F.2d 1207, 1984-1 Trade Cases paragraph 66050, June 8, 1984 (8th Cir.1984); Golden State Transit Corp. v. City of Los Ange les, 726 F.2d 1430 (9th Cir.1984); Town of Hallie v. City of Eau Claire, 700 F.2d 376 (7th Cir.1983). The Court HOLDS that the state supervision need not be proved by a municipality to establish Parker immunity. As the United States Court of Appeals for the Eighth Circuit observed in Sioux City, supra, municipal officials are supervised by the citizens they represent thus state supervision is less necessary to prevent abuse of power. Sioux City, supra, at 1214. Moreover, the state supervision prong tests whether an activity is truly state action yet this test is already performed for a municipality when the Court examines whether the action was authorized. Id. Accordingly, the Court turns" }, { "docid": "186781", "title": "", "text": "contemplated the kind of action complained of.’ ” Id. (quoting City of Lafayette v. Louisiana Power & Light Co., 532 F.2d 431, 434 (5th Cir.1976)). See Phillip Areeda, Antitrust Immunity for “State Action” after Lafayette, 95 Harv. L.Rev. 435, 445-46 (1981). Subsequent cases would refer to City of Lafayette as requiring a “clearly articulated and affirmatively expressed policy” to displace competition. See, e.g., New Motor Vehicle Bd. v. Orrin W. Fox Co., 439 U.S. 96, 109, 99 S.Ct. 403, 58 L.Ed.2d 361 (1978) (citing City of Lafayette, 435 U.S. at 410, 98 5.Ct. 1123); California Retail Liquor Dealers Assoc. v. Midcal Aluminum, 445 U.S. 97, 104, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980) (same). In the passage cited by these cases, Justice Brennan used this phrase to discuss the scheme at issue in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), an earlier Supreme Court case, rather than to set the standard for applying the state action exemption to anticompetitive acts by municipal market participants. City of Lafayette, 435 U.S. at 410, 98 S.Ct. 1123. Nevertheless, the “clear articulation” label is not quite the hurdle that its language suggests, because it has always been construed as synonymous with the foreseeability test articulated above. See, e.g., City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 372-73, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991); Town of Hallie v. City of Eau Claire, 471 U.S. 34, 39, 105 S.Ct. 1713, 85 L.Ed.2d 24 (1985); Cine 42nd Street Theater Corp. v. Nederlander Organization, Inc., 790 F.2d 1032, 1042 (2d Cir.1986) (“The [Supreme] Court thus indicated the test should be one of foreseeability— whether the legislature could foresee the anticompetitive effects that would follow from the express authority the state had delegated to its cities.”). More significantly, however it is labeled, the City of Lafayette test does not apply to anticompetitive actions undertaken by a State rather than a municipality. On the contrary, it is clear that, if the State of Louisiana, rather than two of its municipalities, had operated the electric utility systems, it" } ]

[ { "docid": "21084023", "title": "", "text": "§ 460. . It is consistent with Virgin Islands statutory law to draw an inference against a defendant from his unlicensed firearm possession. See, e.g., V.I.Code Ann. tit. 14, § 2253(c) (Defendant's unlicensed firearm possession \"shall be evidence of his intention to commit [a] crime of violence.”). .In 1957, carrying a concealed firearm without a license resulted in imprisonment for up to one year. V.I.Code Ann. tit. 14, § 2252 (1957). The current penalty for simple firearm possession is a maximum of three years and a minimum of six months incarceration. V.I.Code Ann. tit. 14,§ 2253(a). In 1953, firearm owners were required to register their firearms within forty-eight hours. Ord.Mun.C.St.T. and St.J. app. Dec. 18, 1953, Bill no. 291. In 1968, the period was decreased to twenty-four hours. V.I.Code Ann. tit. 23, § 470 (1968). In September 1996, the statute was amended again, requiring “immediate” registration. V.I.Code Ann. tit. 23, § 470 (Sept. 1996). . The district court implied in its jury instructions that the duration of firearm possession was under twenty-four hours: Now, Virgin Islands firearms licensing law allows someone who obtains a firearm in the territory a grace period of 24 hours after receiving the firearm to report that fact to the Commissioner of Police for the purpose of obtaining a license for the firearm.... You’ve heard the testimony of defendant, Jermaine Hall, that he bought these three firearms ... in the early evening of the night the car was stopped and he was arrested for these charges. If, after you examine the evidence, you find that Mr. Hall possessed these firearms ... and did not have a license to possess these firearms, you should then consider his testimony in determining whether he intended to report his purchase, and whether his arrest prevented him from so reporting his purchase of the guns to the police within 24 hours. (Appellants' Br. at 222a — 223a.) . As we have noted, all defendants were convicted of violating 18 U.S.C. §§ 922(k) and 2, which prohibit possession (and aiding and abetting possession) of a firearm with an obliterated serial number. McKie" } ]

[ { "docid": "21084008", "title": "", "text": "a charged violation of V.I.Code'Ann. tit. 14, § 2253, and falls within defendants’ burden of production. See Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281 (1977) (holding the government need not prove beyond a reasonable doubt the nonexistence of all affirmative defenses); Government of Virgin Islands v. Smith, 949 F.2d 677, 686 (3d Cir. 1991) (defendant bears burden of production on affirmative defenses). 1. . At the time of the arrest, V.I.Code Ann. tit. 23, § 470 (1968), allowed gun owners twenty-four hours to register their firearms: • (a) Any person ... who purchases or otherwise obtains any firearms or ammunition from any source within or outside of the Virgin Islands shall report such fact in writing or in person to the Commissioner within 24 hours after receipt of the firearm or ammunition____ (c) ... If the person is not qualified for a license then the Commissioner shall retain the firearms or ammunition ..., but no prosecution shall he against the person for unlawful possession of the firearm or ammunition. The twenty-four hour grace period was removed from § 470 in September 1996. Under the current statute, a person must obtain a license “immediately” upon possession of a firearm. Y.I.Code Ann. tit. 23, § 470 (Sept. 1996). Defendants argue it was the government’s burden to prove their firearm possession lasted beyond twenty-four hours. It is always the government’s burden to prove “beyond a reasonable doubt ... every fact necessary to constitute the crime with which [a defendant] is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). The issue, then, is whether possession for more than twenty-four hours is a fact necessary to constitute the crime of unlawful possession in violation of § 2253. Our review of statutory construction is plenary. See Christopher v. Davis Beach Co., 15 F.3d 38, 41 (3d Cir.1994). We must first look to the language of V.I.Code Ann. tit. 14, § 2253. See United States v. Schneider, 14 F.3d 876, 879 (3d Cir.1994). The statute punishes anyone who, “unless otherwise authorized" }, { "docid": "21084014", "title": "", "text": "The government urges us to follow King, arguing the stated purpose of § 470 is to proscribe possession of unlicensed firearms. See V.I.Code Ann. tit. 23, ch. 5 (1968) (Annotations) (“This chapter [including § 470] provides for penalizing constructive possession of an unlicensed firearm____”) The history of Virgin Islands statutory law reveals a consistent increase in the penalty for unlawful gun possession, and a consistent decrease in the time allowed for firearm registration. The government argues that interpreting § 470 to immunize anyone arrested within twenty-four hours of a purchase is directly contrary to § 470’s legislative intent. The government maintains the Virgin Islands legislature did not intend § 470 to provide a refuge for gun owners who never intended to register their firearms. But the language of § 470 does not include a requirement of “intent to register” for a firearm license. It simply requires registration “within 24 hours.” Other than King, the government cites no authority for its interpretation. We have examined similar statutes from other states, but we have been unable to find any court which creates an intent requirement under similar circumstances. We must interpret criminal statutes strictly, “and any ambiguity must be resolved in favor of lenity” towards the defendants. United States v. Enmons, 410 U.S. 396, 411, 93 S.Ct. 1007, 1015, 35 L.Ed.2d 379 (1973); United States v. Long, 654 F.2d 911, 914 (3d Cir.1981). The language of the statute (now repealed) was clear and unambiguous. It required only that “[a]ny person ... who purchases or otherwise obtains any firearm ... [to] report such fact ... within 24 hours after receipt of the firearm____” V.I.Code Ann. tit. 23, § 470 (1968). If the legislature meant to include “intent to report” as part of the defense, it did not say so. See Government of Virgin Islands v. Smalls, No. CRIM. F12/1994, 1995 WL 457975 (Terr.Ct.V.I. July 27, 1995) (“[W]hether a defendant intended to report the firearm or not does not vitiate the legal authority to possess the firearm for twenty four hours before reporting it. There is no element of ‘intent to report’ under the" }, { "docid": "8154942", "title": "", "text": "United States v. Universal Rehab. Servs. (PA), Inc., 205 F.3d 657, 666 (3d Cir.2000) (en banc). The mere fact that Francis’ credibility would have been aggressively attacked by the prosecutor should not be sufficient to undermine the due process interests of ensuring that a defendant is able to present a defense to a criminal charge. Here, the district court’s ruling deprived Mike of the only witness who could testify about Mike’s knowledge of the contents of the package he received. The fact that such testimony would have made conviction more difficult if accepted by the jury is not a reason to deny a defendant access to favorable witnesses. Each of the protections of the accused that were so carefully engrafted onto the Bill of Rights makes conviction of the guilty more difficult. That surely cannot be a reason to so narrow the doctrine of use immunity that defendants are denied access to fact witnesses. The jury system rests upon the assumption that a properly instructed jury will be able to sort through the evidence and the arguments of counsel and determine if the government has proven its case beyond a reasonable doubt. Judicial use immunity exists to ensure due process. Although a jury will always be free to disregard the testimony of a defense witness, courts should not usurp the jury’s function by deciding the credibility of a witness. III. Affirmative Defense Under 23 V.I.C. § 470 Finally, before concluding, I think it helpful to state a concern and observation about the affirmative defense created by 28 V.I.C. § 470. As the majority notes, in United States v. McKie, 112 F.3d 626, 631 (3d Cir.1997), we held that there is an affirmative defense to possessing a firearm under Virgin Islands law because a person had 24 hours to register the weapon before it becomes illegal to possess it. No doubt because of problems of proof, the Virgin Islands legislature amended § 470 to require “immediate” registration upon entering the Virgin Islands. However, as this case illustrates, that amendment creates more problems than it solves. It will often be impossible to" }, { "docid": "8154923", "title": "", "text": "period before a person is required to report the receipt of the firearm to the Virgin Islands Police Commission. 112 F.3d 626, 631 (3d Cir.1997). In doing so, § 470 created an affirmative defense to the crime of unlawful possession. Id. When the defendant in McKie was arrested, § 470 gave him 24 hours to report the fact that he had obtained a firearm, but by the time his case was presented to this Court the statute had been amended into its current form to provide that firearms obtained from outside the Virgin Islands must be reported “immediately.” Id. at 632. Mike argues that his motion for a judgment of acquittal should have been granted, or that the jury should have been instructed on his affirmative defense under § 470, because the trial testimony demonstrated that he was arrested “immediately” after obtaining the AK-47. The Government counters that the evidence presented at trial makes it obvious that Mike had absolutely no intention of reporting the gun, “immediately” or any time thereafter. To which Mike responds that McKie made clear that a defendant does not need to prove intent to report in order to obtain the § 470 affirmative defense. Id. at 632 (“If the legislature meant to include ‘intent to report’ as part of the defense, it did not say so.”). We agree with the Government that Mike was not entitled to a judgment of acquittal or a jury instruction on the affirmative defense. In McKie, we explained that “ ‘intent to report’ was not an element of the affirmative defense of firearm possession for less than twenty-four hours as it existed under § 470, before its recent amendment.” Id. (emphasis added). When the Virgin Islands legislature substituted the 24-hour period to report in § 470 for a time period defined by the word “immediately,” it fundamentally changed the nature of the affirmative defense. The McKie court intimated as much, explaining that “the legislature wanted to close the loophole created by the twenty-four hour grace period.” Id. (citing Hearing on Bill No. 21-0219 to amend Title 23, Section 470 of" }, { "docid": "8154920", "title": "", "text": "of the Virgin Islands code. We exercise plenary review over the grant or denial of a motion for acquittal under Federal Rule of Criminal Procedure 29, applying the same standard as the District Court. United States v. Silveus, 542 F.3d 993, 1002 (3d Cir.2008). Thus, we look to determine whether the evidence is sufficient to support the conviction, Fed.R.Crim.P. 29, but in doing so, we are mindful that “[i]t is not for us to weigh the evidence or to determine the credibility of the witnesses.” United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir.1996) (quoting United States v. Schoolcraft, 879 F.2d 64, 69 (3d Cir.1989)). Instead, we review the evidence in the light most favorable to the government and sustain the verdict “if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Dent, 149 F.3d 180, 187 (3d Cir.1998) (quoting Voigt, 89 F.3d at 1080). In the Virgin Islands, “[wjhoever, unless otherwise authorized by law ... possesses ... either actually or constructively ... any firearm, as defined in Title 23, section 451(d) of [the Virgin Islands] code” is subject to imprisonment. V.I.Code Ann. tit. 14, § 2253(a). A firearm, as defined by § 451(d), is “any device by whatever name known, capable of discharging ammunition by means of gas generated from an explosive composition, including any air gas or spring gun or any ‘BB’ pistols or ‘BB’ guns that have been adapted or modified to discharge projectiles as a firearm.” V.I.Code Ann. tit. 23, § 451(d). In his brief, Mike argues that his motion should have been granted because the testimony at trial showed that the AK-47 was delivered without its firing bolt and was therefore inoperable. However, at oral argument, Mike shifted tack, instead arguing that the problem was that there was no evidence at trial showing that the weapon had ever been test fired and shown to be capable of firing a bullet. The record demonstrates otherwise. When asked at trial whether he had test-fired the weapon, postal inspector Mitchell Perez answered that “we dry-fired" }, { "docid": "21084013", "title": "", "text": "firearm possession under V.I.Code Ann. tit. 14, § 2253, but rather is an affirmative defense. 2. But this is not the end of the inquiry. Defendants also contend they are entitled to acquittal because they presented uneontradicted evidence they purchased the guns less than twenty-four hours before their arrest. The district court instructed the jury that it may nonetheless convict defendants unless they intended to obtain a firearm license within twenty-four hours and were prevented from doing so by their arrests. Defendants challenge the court’s instruction on intent, contending they may not be convicted as a matter of law if their possession did not extend beyond twenty-four hours. The district court relied on Government of Virgin Islands v. King, No. CRIM. 529/1994, 1995 WL 217613 (Terr.Ct.V.I. March 3, 1995), which held the twenty-four hour grace period protects only those persons who intend to register and lawfully own their firearms, stating “[sjection 470 is not a refuge for all who desire to possess a gun for less than a day.” Id., 1995 WL 217613, at *5. The government urges us to follow King, arguing the stated purpose of § 470 is to proscribe possession of unlicensed firearms. See V.I.Code Ann. tit. 23, ch. 5 (1968) (Annotations) (“This chapter [including § 470] provides for penalizing constructive possession of an unlicensed firearm____”) The history of Virgin Islands statutory law reveals a consistent increase in the penalty for unlawful gun possession, and a consistent decrease in the time allowed for firearm registration. The government argues that interpreting § 470 to immunize anyone arrested within twenty-four hours of a purchase is directly contrary to § 470’s legislative intent. The government maintains the Virgin Islands legislature did not intend § 470 to provide a refuge for gun owners who never intended to register their firearms. But the language of § 470 does not include a requirement of “intent to register” for a firearm license. It simply requires registration “within 24 hours.” Other than King, the government cites no authority for its interpretation. We have examined similar statutes from other states, but we have been unable to" }, { "docid": "21084009", "title": "", "text": "or ammunition. The twenty-four hour grace period was removed from § 470 in September 1996. Under the current statute, a person must obtain a license “immediately” upon possession of a firearm. Y.I.Code Ann. tit. 23, § 470 (Sept. 1996). Defendants argue it was the government’s burden to prove their firearm possession lasted beyond twenty-four hours. It is always the government’s burden to prove “beyond a reasonable doubt ... every fact necessary to constitute the crime with which [a defendant] is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). The issue, then, is whether possession for more than twenty-four hours is a fact necessary to constitute the crime of unlawful possession in violation of § 2253. Our review of statutory construction is plenary. See Christopher v. Davis Beach Co., 15 F.3d 38, 41 (3d Cir.1994). We must first look to the language of V.I.Code Ann. tit. 14, § 2253. See United States v. Schneider, 14 F.3d 876, 879 (3d Cir.1994). The statute punishes anyone who, “unless otherwise authorized by law, has, possesses, bears, transports or carries either openly or concealed on or about his person, or under his control in any vehicle of any description any firearm.” Section 2253 does not mention duration of possession nor does it reference the twenty-four hour grace period in § 470. In the past we have interpreted the clause “unless otherwise authorized by law” to mean possession without a license. See Government of Virgin Islands v. Soto, 718 F.2d 72, 80 (3d Cir.1983) (“[T]he gravamen of [§ 2253] appears to have been the possession of unlicensed firearms....”); Government of Virgin Islands v. Bedford, 671 F.2d 758, 763 n. 7 (3d Cir.1982) (approving a jury instruction that § 2253(a) is violated if, “the defendant possessed the firearm; ... he was not licensed to possess it; and ... it meets the definition ... of a firearm.”). The government must prove the absence of a firearms license. But we have never designated proof of possession for more than twenty-four hours as an element of the crime. Nonetheless, we will examine" }, { "docid": "8154921", "title": "", "text": "... any firearm, as defined in Title 23, section 451(d) of [the Virgin Islands] code” is subject to imprisonment. V.I.Code Ann. tit. 14, § 2253(a). A firearm, as defined by § 451(d), is “any device by whatever name known, capable of discharging ammunition by means of gas generated from an explosive composition, including any air gas or spring gun or any ‘BB’ pistols or ‘BB’ guns that have been adapted or modified to discharge projectiles as a firearm.” V.I.Code Ann. tit. 23, § 451(d). In his brief, Mike argues that his motion should have been granted because the testimony at trial showed that the AK-47 was delivered without its firing bolt and was therefore inoperable. However, at oral argument, Mike shifted tack, instead arguing that the problem was that there was no evidence at trial showing that the weapon had ever been test fired and shown to be capable of firing a bullet. The record demonstrates otherwise. When asked at trial whether he had test-fired the weapon, postal inspector Mitchell Perez answered that “we dry-fired it.” (App. 148). He also testified that the AK — 47 presented to him at trial was the same one he found inside the package addressed to Imon Thomas when it was intercepted in Puerto Rico. Later in the trial, Senior- Special Agent Felix Rios, from the Bureau of Alcohol, Tobacco, Firearms and Explosives testified that he test-fired that same weapon in August 2009 and concluded “that the weapon was operable, and that it was, will fire in semiautomatic mode.” (App. 157.) Viewing the above evidence in the light most favorable to the government, we conclude that a rational jury could have concluded that the AK-47 was capable of discharging ammunition. We thus affirm the District Court’s order denying Mike’s Rule 29 motion. IV. As stated previously, the Virgin Islands prohibits possession of a firearm “unless otherwise authorized by law.” V.I.Code Ann. tit. 14, § 2253(a). In United States v. McKie, we decided that § 470 of Title 23 of the Virgin Islands code essentially “authorized by law” the possession of a firearm in the" }, { "docid": "8154930", "title": "", "text": "whether a firearm must be operable in order to be a firearm under 23 V.I.C. § 451(d). In the second case, the District Court of the Virgin Islands held: “To prove this charge [possession of an unlicensed firearm], the government must show that the firearm was operable.” Virgin Islands v. Albert, 1980 U.S. Dist. LEXIS 14466 (D.Ct.V.1. 1980) (citing 14 V.I.C. § 2253(a) and 23 V.I.C. § 451(d)). Neither case is analogous to the situation here where a firearm that was capable of discharging ammunition is subsequently rendered inoperable by law enforcement officials and then forwarded to a defendant to take possession of it as part of a criminal investigation. I agree that the gun that Mike received qualifies as a “firearm,” but my analysis of that issue diverges a bit from that of my colleagues. -The majority writes: In his brief, Mike argues that his motion should have been granted because the testimony at trial showed that the AK-47 was delivered without its firing bolt and was therefore inoperable. However, at oral argument, Mike shifted tack, instead arguing that the problem was that there was no evidence at trial showing that the weapon had ever been test fired and shown to be capable of firing a bullet. The record demonstrates otherwise. Maj. Op. at 174. My colleagues then conclude that because there was evidence that the firearm was operable when the government tested it, a rational jury could have concluded that the AX-47 was capable of discharging ammunition. Although I agree with the majority’s conclusion, I do not think it is at all relevant that defense counsel “shifted tack” at oral argument. Although Mike’s attorney stated that there was no evidence regarding whether the weapon was ever “dry-fired” by the government, it appears that he was merely confused about the record. Mike’s counsel did not concede the issue in his brief. Accordingly, I think we should take this opportunity to decide directly that the Virgin Islands statute applies to a weapon that is capable of firing when placed into the mail, but subsequently is rendered inoperable by law enforcement" }, { "docid": "8154924", "title": "", "text": "that McKie made clear that a defendant does not need to prove intent to report in order to obtain the § 470 affirmative defense. Id. at 632 (“If the legislature meant to include ‘intent to report’ as part of the defense, it did not say so.”). We agree with the Government that Mike was not entitled to a judgment of acquittal or a jury instruction on the affirmative defense. In McKie, we explained that “ ‘intent to report’ was not an element of the affirmative defense of firearm possession for less than twenty-four hours as it existed under § 470, before its recent amendment.” Id. (emphasis added). When the Virgin Islands legislature substituted the 24-hour period to report in § 470 for a time period defined by the word “immediately,” it fundamentally changed the nature of the affirmative defense. The McKie court intimated as much, explaining that “the legislature wanted to close the loophole created by the twenty-four hour grace period.” Id. (citing Hearing on Bill No. 21-0219 to amend Title 23, Section 470 of the Virgin Islands Code, Reg. Sess. (V.I. Aug. 29, 1996)). “Immediately” means “instantly; at once” or “with no object or space intervening.” Webster’s Unabridged Dictionary 957 (2d ed.1998). By using this term the Virgin Islands legislature accomplished its objective, eliminating the use of § 470 as a viable affirmative defense in the vast majority of cases by collapsing the time period for reporting into nothing. The only way a person can “immediately” report the receipt of a firearm is to conscientiously set out with that intent and provide the report when the firearm is obtained. The evidence at trial revealed that the AK-47 was slathered in grease to mask its scent from curious canines, that the gun was inside a package addressed to a fictitious person named Imon Thomas, and that Mike convinced a juvenile to pick up the package for him under the assumed name of the fictitious addressee. The evidence was clear that Mike had no intent to “immediately” report the receipt of the firearm. Without such evidence, Mike was not entitled to" }, { "docid": "8154945", "title": "", "text": "firearm. I agree that this complication does not assist Mike because all of the circumstances here supports the conclusion that he never intended to register the gun he received in the first place. Moreover, Mike’s attempt to seek shelter under § 470 is undermined by his attempt to also argue that he did not know what was in the package he received. I therefore join my colleagues in rejecting Mike’s defense here. However, the Virgin Islands legislature may wish to consider the problems the amendment to this statute could create in future cases so that police will not have to wait a sufficient time to rebut any suggestion of an intent to immediately register a weapon before making an arrest for a violation of § 2253(a). Conclusion In conclusion, I concur that sufficient evidence proves that Mike violated 14 V.I.C. § 2253(a). However, I believe that the court should have granted use immuni ty to Francis and thereby allowed Mike to present that defense testimony. . The statute reads as follows: (a) Whoever, unless otherwise authorized by law, has, possesses, bears, transports or carries either, actually or constructively, openly or concealed any firearm, as defined in Title 23, section 451(d) of this code, loaded or unloaded, may be arrested without a warrant[.] 14 V.I.C. § 2253(a) . The government does not dispute that § 451(d) requires that a firearm be capable of firing ammunition. It counters, however, that the firearm was operable when it was mailed, and \"but-for” its intervention, the firearm would have been operable when Mike received it. The government cites no cases in its favor, and a review of relevant case law finds no support for this proposition. . Mike's list of cases is not exhaustive. Although other cases similarly use the word \"operable” and \"capable of discharging ammunition” interchangeably, none of those cases are binding. . Additionally, the more restrictive definition of \"firearm” urged by Mike yields illogical results as evidenced here. This statute is clearly aimed at the illegal flow of guns and the carnage and devastation they cause. Mike’s interpretation of the statute would" }, { "docid": "21084022", "title": "", "text": "be registered in the Weapons Register provided for in section 469 of this chapter. If the person is not qualified for a license then the Commissioner shall retain the firearms or ammunition for disposition in accordance with the provisions of section 475 of this chapter, but no prosecution shall lie against the person for unlawful possession of the firearm or ammunition. (d) Any person who fails to comply with this section shall be punished as provided in section 484 of this chapter [the General Penalty section]. . For example, the government would have to prove the defendants are not members of any of the armed forces of the United States, see V.I.Code Ann. tit. 23, § 453(a)(1), that defendants are not officers or employees of a federal agency authorized by law to carry firearms, see V.I.Code Ann. tit. 23, § 453(a)(2), that defendants are not jail wardens, see V.I.Code Ann. tit. 23, § 453(a)(5), and that defendants do not have licenses to carry firearms in any of the United States, see V.I.Code Ann. tit. 23, § 460. . It is consistent with Virgin Islands statutory law to draw an inference against a defendant from his unlicensed firearm possession. See, e.g., V.I.Code Ann. tit. 14, § 2253(c) (Defendant's unlicensed firearm possession \"shall be evidence of his intention to commit [a] crime of violence.”). .In 1957, carrying a concealed firearm without a license resulted in imprisonment for up to one year. V.I.Code Ann. tit. 14, § 2252 (1957). The current penalty for simple firearm possession is a maximum of three years and a minimum of six months incarceration. V.I.Code Ann. tit. 14,§ 2253(a). In 1953, firearm owners were required to register their firearms within forty-eight hours. Ord.Mun.C.St.T. and St.J. app. Dec. 18, 1953, Bill no. 291. In 1968, the period was decreased to twenty-four hours. V.I.Code Ann. tit. 23, § 470 (1968). In September 1996, the statute was amended again, requiring “immediate” registration. V.I.Code Ann. tit. 23, § 470 (Sept. 1996). . The district court implied in its jury instructions that the duration of firearm possession was under twenty-four hours: Now, Virgin" }, { "docid": "8154922", "title": "", "text": "it.” (App. 148). He also testified that the AK — 47 presented to him at trial was the same one he found inside the package addressed to Imon Thomas when it was intercepted in Puerto Rico. Later in the trial, Senior- Special Agent Felix Rios, from the Bureau of Alcohol, Tobacco, Firearms and Explosives testified that he test-fired that same weapon in August 2009 and concluded “that the weapon was operable, and that it was, will fire in semiautomatic mode.” (App. 157.) Viewing the above evidence in the light most favorable to the government, we conclude that a rational jury could have concluded that the AK-47 was capable of discharging ammunition. We thus affirm the District Court’s order denying Mike’s Rule 29 motion. IV. As stated previously, the Virgin Islands prohibits possession of a firearm “unless otherwise authorized by law.” V.I.Code Ann. tit. 14, § 2253(a). In United States v. McKie, we decided that § 470 of Title 23 of the Virgin Islands code essentially “authorized by law” the possession of a firearm in the period before a person is required to report the receipt of the firearm to the Virgin Islands Police Commission. 112 F.3d 626, 631 (3d Cir.1997). In doing so, § 470 created an affirmative defense to the crime of unlawful possession. Id. When the defendant in McKie was arrested, § 470 gave him 24 hours to report the fact that he had obtained a firearm, but by the time his case was presented to this Court the statute had been amended into its current form to provide that firearms obtained from outside the Virgin Islands must be reported “immediately.” Id. at 632. Mike argues that his motion for a judgment of acquittal should have been granted, or that the jury should have been instructed on his affirmative defense under § 470, because the trial testimony demonstrated that he was arrested “immediately” after obtaining the AK-47. The Government counters that the evidence presented at trial makes it obvious that Mike had absolutely no intention of reporting the gun, “immediately” or any time thereafter. To which Mike responds" }, { "docid": "21084007", "title": "", "text": "768 (1981) (“[Ajrticles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within ‘the area into which an arrestee might reach in order to grab a weapon____’”) (quoting Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969)). The weapons were therefore under McKie’s control within the meaning of § 2253. B. It is the government’s burden under V.I.Code Ann. tit. 14, § 2253 to prove defendants were unauthorized to carry or possess the guns. See Xavier, 2 F.3d at 1289. The district court held the government would satisfy this burden by proving, among other things, that defendants' did not have a firearms license. But defendants contend that, under V.I.Code Ann. tit. 23, § 470 (1968) (amended Sept.1996), unlicensed firearm possession is not unauthorized by law until it lasts beyond a twenty-four hour period. Defendants maintain the government bears the burden to prove possession beyond twenty-four hours. The government disagrees, contending § 470 provides defendants an affirmative defense to a charged violation of V.I.Code'Ann. tit. 14, § 2253, and falls within defendants’ burden of production. See Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281 (1977) (holding the government need not prove beyond a reasonable doubt the nonexistence of all affirmative defenses); Government of Virgin Islands v. Smith, 949 F.2d 677, 686 (3d Cir. 1991) (defendant bears burden of production on affirmative defenses). 1. . At the time of the arrest, V.I.Code Ann. tit. 23, § 470 (1968), allowed gun owners twenty-four hours to register their firearms: • (a) Any person ... who purchases or otherwise obtains any firearms or ammunition from any source within or outside of the Virgin Islands shall report such fact in writing or in person to the Commissioner within 24 hours after receipt of the firearm or ammunition____ (c) ... If the person is not qualified for a license then the Commissioner shall retain the firearms or ammunition ..., but no prosecution shall he against the person for unlawful possession of the firearm" }, { "docid": "21084012", "title": "", "text": "capable of being traced, we believe that when a firearm was obtained is almost always exclusively within the knowledge of the defendant. See United States v. Gainey, 380 U.S. 63, 65, 85 S.Ct. 754, 757, 13 L.Ed.2d 658 (1965) (The “practical impossibility” of proving a statutory violation resulted in presumption against defendants charged with violating the statute.) In addition, the defendants’ argument would require the government to prove in each prosecution that none of the statutory exceptions to the firearm license requirement are satisfied. Such an interpretation would conflict with our obligation to construe statutes sensibly and avoid constructions which yield absurd or unjust results. See United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981); Government of Virgin Islands v. Berry, 604 F.2d 221, 225 (3d Cir.1979). After the government proves unlicensed firearm possession, we do not find it a hardship for the defendant to come forward with evidence of the duration of possession. Therefore, we hold § 470 is not an element of the offense of unlawful firearm possession under V.I.Code Ann. tit. 14, § 2253, but rather is an affirmative defense. 2. But this is not the end of the inquiry. Defendants also contend they are entitled to acquittal because they presented uneontradicted evidence they purchased the guns less than twenty-four hours before their arrest. The district court instructed the jury that it may nonetheless convict defendants unless they intended to obtain a firearm license within twenty-four hours and were prevented from doing so by their arrests. Defendants challenge the court’s instruction on intent, contending they may not be convicted as a matter of law if their possession did not extend beyond twenty-four hours. The district court relied on Government of Virgin Islands v. King, No. CRIM. 529/1994, 1995 WL 217613 (Terr.Ct.V.I. March 3, 1995), which held the twenty-four hour grace period protects only those persons who intend to register and lawfully own their firearms, stating “[sjection 470 is not a refuge for all who desire to possess a gun for less than a day.” Id., 1995 WL 217613, at *5." }, { "docid": "8154925", "title": "", "text": "the Virgin Islands Code, Reg. Sess. (V.I. Aug. 29, 1996)). “Immediately” means “instantly; at once” or “with no object or space intervening.” Webster’s Unabridged Dictionary 957 (2d ed.1998). By using this term the Virgin Islands legislature accomplished its objective, eliminating the use of § 470 as a viable affirmative defense in the vast majority of cases by collapsing the time period for reporting into nothing. The only way a person can “immediately” report the receipt of a firearm is to conscientiously set out with that intent and provide the report when the firearm is obtained. The evidence at trial revealed that the AK-47 was slathered in grease to mask its scent from curious canines, that the gun was inside a package addressed to a fictitious person named Imon Thomas, and that Mike convinced a juvenile to pick up the package for him under the assumed name of the fictitious addressee. The evidence was clear that Mike had no intent to “immediately” report the receipt of the firearm. Without such evidence, Mike was not entitled to a jury instruction on the affirmative defense and, even if one had been given, no rational trier of fact could have used it as the basis for an acquittal. See Government of the Virgin Islands v. Carmona, 422 F.2d 95, 101 (3d Cir.1970) (concluding that defendant was not entitled to jury instruction where there was no evidence to support it). V. We find no merit to Mike’s argument that the District Court abused its discretion when it failed to grant use immunity to a co-defendant. We similarly find unpersuasive the argument that Mike did not possess a “firearm” as that word is defined by Virgin Islands statute. And there is no evidence in the record that would have warranted a jury instruction on an affirmative defense under V.I.Code Ann. Tit. 23, § 470. For all of the foregoing reasons, the judgment of the District Court is affirmed. . Our decision in United States v. Thomas, 357 F.3d 357 (3d Cir.2004) did not set forth the standard of review. In that case, the appellant failed to" }, { "docid": "21084016", "title": "", "text": "statute.”). For this reason, we believe, the Virgin Islands legislature eliminated the twenty-four hour grace period in September 1996. Section 470 now requires registration “immediately” upon possession of a firearm. The extensive legislative history reveals the reasons for the amendment. Concerned with the conflict between the territorial court decisions in King and Smalls, the legislature wanted to close the loophole created by the twenty-four hour grace period. As stated by one Virgin Islands senator, “[W]ith a loophole as big as the one that is currently on the books that allow[s] for a 24 hour reporting period you can clearly see that anyone at any time can easily utilize that loophole as a means of getting out of then-basic responsibility and their whole possession of a firearm whether acquired legally or illegally.” Hearing on Bill No. 21-0219, to amend Title 23, Section 4.70 of the Virgin Islands Code, Reg.Sess. (V.I. Aug. 29, 1996) (statement of Senator Osbert Potter). Another senator stated, “This bill involves closing some loopholes that essentially provide for a field day for a criminal element in the area of firearm possession.” Id. (statement of Senator Afinando Liburd). And yet another said, “There are too many guns in this community. And if we don’t start by closing these loopholes we never will.” Id. (statement of Senator Lorraine L. Berry). ‘We believe “intent to report” was not an element of the affirmative defense of firearm possession for less than twenty-four hours”, as it existed under § 470 before its recent amendment. Because the defendants presented uncontradicted evidence of possession for less than twenty-four hours, we find their firearm possession was not unauthorized by Virgin Islands law. Therefore we must reverse defendants’ convictions under V.I.Code Ann. tit. 14, §§ 2253(a), (b) and 11 (aiding and abetting). IV. We will reverse the convictions of all defendants under V.I.Code Ann. tit. 14, §§ 2253(a), (b) and 11 (Counts II and III of the indictment). We will remand for resentencing on the remaining convictions under 18 U.S.C. §§ 922 and 2. See United States v. Levy, 865 F.2d 551, 559 n. 5 (8d Cir.1989)" }, { "docid": "8154929", "title": "", "text": "of gas generated from an explosive composition, including any air gas or spring gun or any “BB” pistols or “BB” guns that have been adapted or modified to discharge projectiles as a firearm. 23 V.I.C. § 451 (emphasis added). Mike relies on two cases to argue that a firearm must be operable under 23 V.I.C. § 451(d) to sustain a conviction for illegal possession of a firearm. Neither is persuasive. In Virgin Islands v. Henry, 232 Fed.Appx. 170 (3d Cir.2007) (unpublished), we simply noted in the procedural history that: the Appellate Division [of the Virgin Islands] ... agreed [with the petitioner] that the government had failed to offer evidence showing that one of the guns retrieved at the scene was operable (i.e., capable of discharging ammunition). Accordingly, the Court reversed Henry’s conviction with respect to the count involving the gun that was not shown to be operable and affirmed his conviction with respect to the remaining gun [which was shown to be operable.] Id. at 173. However, in reaching our holding we did not determine whether a firearm must be operable in order to be a firearm under 23 V.I.C. § 451(d). In the second case, the District Court of the Virgin Islands held: “To prove this charge [possession of an unlicensed firearm], the government must show that the firearm was operable.” Virgin Islands v. Albert, 1980 U.S. Dist. LEXIS 14466 (D.Ct.V.1. 1980) (citing 14 V.I.C. § 2253(a) and 23 V.I.C. § 451(d)). Neither case is analogous to the situation here where a firearm that was capable of discharging ammunition is subsequently rendered inoperable by law enforcement officials and then forwarded to a defendant to take possession of it as part of a criminal investigation. I agree that the gun that Mike received qualifies as a “firearm,” but my analysis of that issue diverges a bit from that of my colleagues. -The majority writes: In his brief, Mike argues that his motion should have been granted because the testimony at trial showed that the AK-47 was delivered without its firing bolt and was therefore inoperable. However, at oral argument, Mike" }, { "docid": "8154904", "title": "", "text": "OPINION OF THE COURT FUENTES, Circuit Judge. Appellant, Jamaal Mike, was convicted by a jury of aiding and abetting the receipt of a firearm acquired outside his state of residency, a violation of 18 U.S.C. § 922(a)(3) and § 924(a)(1)(D); and unauthorized possession of a firearm in violation of V.I.Code Ann. tit. 14, § 2253(a). He appeals these convictions, arguing that there were three problems with his trial. First, he says that the District Court erred when it failed to give use immunity to a co-defendant; second, he says that he is entitled to a judgment of acquittal because there was no evidence that the firearm he was convicted of possessing was capable of discharging ammunition; and finally, he says that he was entitled to a judgment of acquittal based on an affirmative defense under Virgin Islands law. We find these arguments unpersuasive and, for the reasons set forth below, affirm the judgment of the District Court. I. On April 10, 2009, Fenyang Ouma Francis put down a deposit to purchase an AK-47 rifle and two 30-round magazines at Rieg’s Gun Shop in Orlando, Florida. He completed the purchase the next day. Ten days later, on April 21, 2009, U.S. postal inspectors in San Juan, Puerto Rico, intercepted a package addressed to a man named Imon Thomas with a post office box in St. Thomas, Virgin Islands. Their investigation revealed that the package’s return address was false and that the post office box in the shipping address was not registered to Imon Thomas. Intrigued, the postal inspectors x-rayed the package and saw a firearm inside. After securing a search warrant, they opened the package and discovered an AK-47 covered in grease and two 30-round magazines. The postal inspectors then removed the weapon from the box and “dry fired” it to test whether it was operable. It was. After that, they removed the AK-47’s firing bolt, placed it back in the box, and sent the firearm on its way to St. Thomas in a controlled delivery designed to apprehend the would-be owner. The next day found the prospective gun owner, Jamaal" }, { "docid": "8154926", "title": "", "text": "a jury instruction on the affirmative defense and, even if one had been given, no rational trier of fact could have used it as the basis for an acquittal. See Government of the Virgin Islands v. Carmona, 422 F.2d 95, 101 (3d Cir.1970) (concluding that defendant was not entitled to jury instruction where there was no evidence to support it). V. We find no merit to Mike’s argument that the District Court abused its discretion when it failed to grant use immunity to a co-defendant. We similarly find unpersuasive the argument that Mike did not possess a “firearm” as that word is defined by Virgin Islands statute. And there is no evidence in the record that would have warranted a jury instruction on an affirmative defense under V.I.Code Ann. Tit. 23, § 470. For all of the foregoing reasons, the judgment of the District Court is affirmed. . Our decision in United States v. Thomas, 357 F.3d 357 (3d Cir.2004) did not set forth the standard of review. In that case, the appellant failed to present his judicial immunity argument to the district court. Id. at 362 (citing Fed.R.Crim.P. 52(b)); see also id. at 365-66. \"Failure to object at trial, absent plain error, constitute a waiver of the issue for post-trial purposes.\" United States v. Tiller, 302 F.3d 98, 105 (3d Cir.2002). Thus, in Thomas, the scope of our review was limited to plain error. McKEE, Chief Judge, concurring in part and dissenting in part: Although I agree with the majority’s conclusion that there was sufficient evidence to convict Jamaal Mike of being in possession of a firearm, I write separately to clarify how courts should interpret the definition of “firearm” under 23 V.I.C. § 451. In addition, I can not agree that the district court properly denied use immunity because I believe that circumstantial evidence that does not directly contradict the testimony of a proposed defense witness is insufficient to negate the otherwise clearly exculpatory nature of such testimony. I therefore believe that the district court erred in not granting use immunity pursuant to our decision in Gov’t of" } ]

[ { "docid": "7521963", "title": "", "text": "PER CURIAM: Stubbs appeals the tax court’s grant of summary judgment in favor of the Commissioner of Internal Revenue Service (“Commissioner”) on Stubbs’ liability for tax deficiencies and penalties for the years 1976 through 1980. The tax court may grant summary judgment if “there is no genuine issue as to any material fact and ... a decision may be rendered as a matter of law.” Tax Court Rule 121(b). Summary judgment may be based on “the pleadings, ... admissions, and any other acceptable materials, together with the affidavits.” Id. The tax court’s grant of summary judgment in this case was based upon certain facts deemed admitted because of Stubbs’ failure to respond in any manner to the Commissioner’s requests for admissions. Among the facts deemed admitted were that Stubbs had received taxable income for 1976 through 1980 in the amounts stated in the notice of deficiency and that his failure to file proper returns and pay his tax was due to intentional disregard of the revenue laws. Stubbs did not come forward with any evidence that any part of the Commissioner’s determination was erroneous. Rather, his sole response to the Commissioner’s motion was his own motion for summary judgment alleging that wages are not taxable income and that Stubbs was not a person required to file a tax return. Such arguments have been rejected by courts at all levels of the judiciary and are patently frivolous. Biermann. v. Commissioner, 769 F.2d 707, 708 (11th Cir.1985). The facts deemed admitted by Stubbs established his liability for the deficiencies and penalties assessed as a matter of law. Therefore, we affirm the tax court’s grant of summary judgment in favor of the Commissioner. We also hold that the tax court did not abuse its discretion in assessing a $5,000.00 penalty against Stubbs for bringing a frivolous suit, given the patently frivolous position taken by Stubbs before the tax court. Before this Court Stubbs also asserts that he has no tax liability because the Sixteenth Amendment was not ratified properly and 26 U.S.C.A. § 6012, setting forth those persons who must file tax returns," } ]

[ { "docid": "20868934", "title": "", "text": "prohibits any court from maintaining a suit that seeks to restrain the assessment or collection of any tax. 26 U.S.C. § 7421(a). The United States Court of Appeals for the Fourth Circuit reviews such claims within a jurisdictional framework. E.g., Judicial Watch, Inc. v. Rossotti, 317 F.3d 401 (4th Cir.2003) (reviewing district court dismissal of taxpayer claim against IRS employees for lack of jurisdiction under AIA pursuant to 12(b)(1)); Estate of Michael ex rel. Michael v. Lullo, 173 F.3d 503 (4th Cir.1999) (same). . 26 C.F.R. § 301.6330-l(d)(2)Q & A-D6 provides that CDP hearings do not require the Appeals Officer and the taxpayer to hold a face-to-face meeting; Internal Revenue Manual § 8.6.1.2.5(2) provides that Appeals will not offer or allow face-to-face conferences for taxpayers who only raise frivolous issues or other issues that Appeals does not consider. Cf. White v. Boyle, 538 F.2d 1077, 1080 (4th Cir.1976) (affirming the district court's con-elusion that IRS employees sued by taxpayer for constitutional violations were protected from liability by official immunity because they were acting within the scope of their authority in investigating taxpayer); Nicholson v. Jaecksch, 679 F.Supp. 518, 521 (D.Md.1987) (noting that defendant IRS officials were acting within their official capacities when seizing vehicle of taxpayer who failed to pay federal tax liability). . Issues cited by O'Meara include: \"The Internal Revenue Service has failed or refused to identify the statute which they claim makes me liable for any tax they allege I owe”; The Internal Revenue Service has failed or refused to identify the source of any authority to make a determination that I am a \"taxpayer” as defined within IRC section 7701(a)(14), yet is acting on the presumption that such a determination has been made; and \"The Internal Revenue Service lacks any statutory authority to institute levy actions against any person who has not been made liable for a tax by statute, but according to the notice sent, intends to initiate them against me nevertheless.” (Def.’s Mem. Mot. Dismiss Ex. 1.) . O’Meara contends that Waters denied him the opportunity to make an audio recording of his hearing" }, { "docid": "12313299", "title": "", "text": "Taxpayers seeking to avoid payment of taxes have raised such arguments before, and courts have rejected them as frivolous. See, e.g., United States v. Barcroft, No. 4:07cv100, 2008 WL. 4412242, *1 (E.D.Tex. Sept. 23, 2008) (“Albert Barcroft’s claims of being ‘an organ of the original Commonwealth of Pennsylvania’ and Pamela Bar-croft’s claims of being ‘the direct posterity of the sovereign People of the original State of New Jersey’ are not enough to make them foreign states, acting in an official capacity, for purposes of FSIA immunity. In fact, Pamela Barcroft’s sworn statements that she is a direct descendant of the founders of the United States of America indicate anything but status as a foreign state under the FSIA. Moreover, even if this Court were to find that the Barcrofts fell under Section 1603’s definition of ‘foreign state’ (which they do not), they still would not be entitled to immunity here. The FSIA contains an exception for suits involving ‘rights in immovable property situated in the United States.’ 28 U.S.C. § 1605(a)(4). The tax liens at issue here involve tax liens placed on land within the United States, making the immunity of the FSIA unavailable”). See also United States v. Sloan, 939 F.2d 499, 500-01 (7th Cir.1991) (rejecting as frivolous a taxpayer’s argument that he was “not a citizen of the United States, but rather, that he is a freeborn, natural individual ..., [and was] not subject to 'the jurisdiction of the laws of the United States”); Stoecklin v. C.I.R., 865 F.2d 1221, 1224 (11th Cir.1989) (rejecting as frivolous a taxpayer’s argument that he was a “freeborn and sovereign” person and was, therefore, not subject to income tax laws); Lonsdale v. United States, 919 F.2d 1440, 1447 (10th Cir.1990) (rejecting as frivolous taxpayer’s argument that “free born, white, preamble, sovereign, natural, individual common law de jure citizens of a state” are not subject to taxation under the Internal Revenue Code); United States v. Dawes, 874 F.2d 746, 751 (10th Cir.1989) (rejecting an individual’s assertion that he was a “sovereign” exempt from taxes); United States v. Studley, 783 F.2d 934, 937 (9th" }, { "docid": "21525913", "title": "", "text": "to whom the benefits of all presumptions and inferences run. H.F. Allen Orchards v. United States, 749 F.2d 1571, 1574 (Fed.Cir.1984), cert. denied, 474 U.S. 818, 106 S.Ct. 64, 88 L.Ed.2d 52 (1985). The portions of plaintiffs complaint that are included in defendant’s summary judgment motion are based primarily upon plaintiffs interpretation of the Fourteenth Amendment of the United States Constitution and his conclusion that he is neither a citizen nor a resident of the United States of America but rather a citizen-principal of the state of California. Based on that belief, plaintiff asserts that he is a nonresident alien with respect to the United States and, therefore, is not subject to federal income tax under the I.R.C. Because plaintiffs allegations present no issues of genuine material fact, the court addresses his remaining contentions as a matter of law. Plaintiffs Fourteenth Amendment arguments have been repeatedly rejected as frivolous in other tax protester cases. See, e.g., United States v. Sloan, 939 F.2d 499, 500-01 (7th Cir.1991) (rejecting contention that defendant was exempt from federal taxation as a citizen of a state but not the United States), cert. denied, 502 U.S. 1060, 112 S.Ct. 940, 117 L.Ed.2d 110 (1992); United States v. Price, 798 F.2d 111, 113 (5th Cir.1986) (rejecting “special status” as state citizen argument); United States v. Studley, 783 F.2d 934, 937 (9th Cir.1986) (rejecting argument that defendant was “an absolute, freeborn and natural individual” and therefore not a “taxpayer”); cf. In re Becraft, 885 F.2d 547, 548 n. 2 (9th Cir.1989) (holding that federal jurisdiction is not limited to federal enclaves and District of Columbia). Moreover, it is uncontroverted that plaintiff resided in California during the tax years at issue and that plaintiff was born in New Jersey to parents who were, as plaintiff avers, “Citizens-Principals” of New Jersey. Thus, plaintiff is not only a resident of the United States, but also a citizen of the United States by birth. U.S. Const, amend. XIV. In addition, contrary to plaintiffs arguments, the Sixteenth Amendment of the United States Constitution authorizes the United States Congress to impose a federal income" }, { "docid": "2305177", "title": "", "text": "Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988). Where the will of Congress “has been expressed in reasonably plain terms, ‘that language must ordinarily be regarded as conclusive.’ ” Griffin, 458 U.S. at 570, 102 S.Ct. 3245 (quoting Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980)). Section 4401 provides that “[e]aeh person who is engaged in the business of accepting wagers shall be liable for and shall pay” the federal wagering excise tax. 26 U.S.C. § 4401(c) (emphasis added). Likewise, § 4411 provides that “[t]here shall be imposed a special tax of $[50] per year to be paid by each person who is liable for the tax imposed under section 4401....” 26 U.S.C. § 4411(a) (emphasis added). Because neither § 4401 nor § 4411 defines the word “person,” it is agreed we must rely on the IRC’s general “Definitions” provision, 26 U.S.C. § 7701. According to § 7701(a)(1), “[t]he term ‘person’ shall be construed to mean and include an individual, a trust, estate, partnership, association, company or corporation.” 26 U.S.C. § 7701(a)(1). Although § 7701(a)(1) does not specifically list “Indian tribes” or “Indian tribal governments,” its definitional phrase is prefaced with the word “include.” According to § 7701(c), “[t]he terms ‘includes’ and ‘including’ when used in a definition contained in this title shall not be deemed to exclude other things otherwise within the meaning of the term defined.” 26 U.S.C. § 7701(c); see generally In re Joplin, 882 F.2d 1507, 1511 (10th Cir.1989) (rejecting, under IRC § 7701(c), an interpretation of the revenue laws that would substitute the term “limited to” for “including”). Thus, the list of entities contained in § 7701(a)(1) cannot be construed as exhaustive, and its failure to specifically list Indian tribes or tribal organizations is not determinative of whether such entities are “persons” for purposes of this case. See Commonwealth Nat’l Bank of Dallas v. United States, 665 F.2d 743, 750 (5th Cir.1982) (concluding that because the definition of the term “person” in IRC § 6671(b) contained the" }, { "docid": "3826110", "title": "", "text": "are frivolous. See, e.g., Lonsdale v. United States, 919 F.2d 1440, 1448 (10th Cir.1990); Maisano v. United States, 908 F.2d 408, 409 (9th Cir.1990) (rejecting as frivolous argument that wages earned from “an occupation of common right” are not taxable income); United States v. Studley, 783 F.2d 934, 937 (9th Cir.1986) (rejecting as frivolous assertion that “an absolute, freeborn and natural individual” is not a “taxpayer” and holding that an individual is a “person” subject to taxation under Internal Revenue Code); Pursell v. United States, 1995 WL 273175, at * 5, n. 9 (E.D.Cal.1995) (“contentions that federal income statutes apply only to alcohol, tobacco, and firearm taxes [are] equally specious”). In addition, the Hopkins contend they did not receive proper notice of the IRS’ intent to levy their wages. (Response to Motion for Summary Judgment at 2, ¶ 6; Appellants’ Opening Brief at 5.) However, the Hopkins do not deny receiving Fourth Delinquency Notices encaptioned “Notice of Intent to Levy”; in fact, they attach a copy of one as an exhibit to their reply brief. Instead, their due process argument rests on the assertion that the notice they received “is a computer generated sheet with no signature therefore not qualifying as a ‘notice.’ ” (Appellants’ Reply Brief at 8, n. 1.) This argument is unpersuasive: neither 26 U.S.C. § 6331(d) nor 26 C.F.R. § 301.6331-2(a)(l) require that a notice of intent to levy include the signature of an IRS official. Cf. 26 C.F.R. § 301.6203-1 (“The assessment shall be made by an assessment officer signing the summary record of assessment.”) The Hopkins have not provided any specific facts that would show a genuine issue for trial regarding possible procedural due process deficiencies in the IRS notices they received. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). IV. CONCLUSION For the foregoing reasons, the Bankruptcy Court’s grant of summary judgment in favor of the United States is AFFIRMED. . The Internal Revenue Code and Treasury regulations require the IRS to give at least 30 days notice, in writing, of its intent to" }, { "docid": "9934889", "title": "", "text": "thus available to Ambort for his own claims. Since alternative remedies exist, Ambort’s case does not fit within the confines of the Regan exception. Moreover, a taxpayer who “refuses to utilize the mechanisms provided by Congress to present his claims of invalidity to the courts and to abide by their decisions” risks criminal prosecution. Cheek, 498 U.S. at 206, 111 S.Ct. 604 (emphasis added). The federal courts have long rejected Ambort’s rationale for lack of tax liability. See United States v. Hanson, 2 F.3d 942, 945 (9th Cir.1993) (rejecting appellant’s contention that “as a natural born citizen of Montana he is a nonresident alien” and thus not subject to federal tax laws); United States v. Cheek, 882 F.2d 1263, 1269, n. 2 (7th Cir.1989), vacated on other grounds, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991) (rejecting claim that defendant was not subject to taxation because he was a white male Christian, and not a “ ‘fourteenth amendment citizen’ ”); United States v. Studley, 783 F.2d 934, 937 & n. 3 (9th Cir.1986) (rejecting argument that an “absolute, freeborn, and natural individual” need not pay federal taxes and noting that “this argument has been [so] consistently and thoroughly rejected by every branch of the government for decades ... [that] advancement of such utterly meritless arguments is now the basis for serious sanctions imposed on civil litigants who raise them”). Indeed, this court has upheld a Fed.R.CivJP. 12(b)(6) dismissal of Mr. Ambort’s refund claim for failure to state a claim upon which relief may be granted. Benson v. United, States, Nos. 94-4182, 95-4061, 1995 WL 674615, at **2 - 3 (10th Cir. Nov. 13, 1995). In that case, we specifically stated that “Mr. Am-bort, a United States citizen born in California and living in the United States, is subject to the tax laws” and that his assertion of status as a nonresident alien was frivolous. Id. at *3. Contrary to Ambort’s contentions, the consistent rejection of his frivolous arguments does not equate to a denial of access to the courts. See Werner v. Utah, 32 F.3d 1446, 1447 (10th" }, { "docid": "3826109", "title": "", "text": "F.2d 733, 737-38 (10th Cir.1992); United States v. Voorhies, 658 F.2d 710, 715 (9th Cir.1981). To overcome the motion for summary judgment, the Hopkins needed to present specific facts that would show a genuine issue for trial. See Fed.R.Civ.P. 56(e) (made applicable to adversary proceedings by Bankruptcy Rule 7056); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The Record on Appeal reveals that the Hopkins produced no evidence to counter the United States’ showing that the assessments made against them for the years 1989, 1990, and 1991, were proper. Therefore, the Bankruptcy Court properly granted summary judgment in favor of the United States. In its summary judgment order, the Bankruptcy Court also dismissed all of the claims set forth in the Hopkins’ original and amended Adversary Complaints. The Hopkins have never challenged the amount of tax liabilities asserted against them by the IRS; instead, they maintain that they are not subject to the federal income tax laws and that their wages are not taxable income. Their arguments are frivolous. See, e.g., Lonsdale v. United States, 919 F.2d 1440, 1448 (10th Cir.1990); Maisano v. United States, 908 F.2d 408, 409 (9th Cir.1990) (rejecting as frivolous argument that wages earned from “an occupation of common right” are not taxable income); United States v. Studley, 783 F.2d 934, 937 (9th Cir.1986) (rejecting as frivolous assertion that “an absolute, freeborn and natural individual” is not a “taxpayer” and holding that an individual is a “person” subject to taxation under Internal Revenue Code); Pursell v. United States, 1995 WL 273175, at * 5, n. 9 (E.D.Cal.1995) (“contentions that federal income statutes apply only to alcohol, tobacco, and firearm taxes [are] equally specious”). In addition, the Hopkins contend they did not receive proper notice of the IRS’ intent to levy their wages. (Response to Motion for Summary Judgment at 2, ¶ 6; Appellants’ Opening Brief at 5.) However, the Hopkins do not deny receiving Fourth Delinquency Notices encaptioned “Notice of Intent to Levy”; in fact, they attach a copy of one as an exhibit to their reply brief." }, { "docid": "1915572", "title": "", "text": "it relates to section 523(a)(8)(B). First, the record does not establish that the debtor was a taxpayer when he took out the Loans. See 26 U.S.C. § 7701(a)(14) (defining a “taxpayer” as “any person subject to any internal revenue tax”). Though one court has suggested that a person’s status as a taxpayer may “almost” be inferred from the fact of U.S. citizenship, see Doyle v. Creeger (In re Creeger), AP No. 15-3023, 2016 WL 3049972, at *12 (Bankr. N.D. Ohio May 20, 2016), neither party has pointed to any evidence in the record establishing the debtor’s citizenship, and even if that fact had been established, the Court would be constrained to draw any reasonable inferences in favor of the debt- or. There is no evidence in the record that the debtor filed federal tax returns or paid federal taxes in 2006 or 2007. Without such evidence, and without the benefit of any arguments from either party as to whether the debtor was a taxpayer at the relevant time, the Court cannot at this juncture conclude that the debtor was a taxpayer when he took out the Loans. Second, it is not clear whether the Loans were “incurred ... solely to pay qualified higher education expenses” within the meaning of section 221(d)(1) of the IRC. The IRC defines “qualified higher education expenses” as the “cost of attend-ancé (as defined in ... 20 U.S.C. 108711, as in effect on the day before ... the enactment of the Taxpayer Relief Act of 1997) at an eligible educational institution” less certain deductions. 26 U.S.C. § 221(d)(2). Here, Wells Fargo has not established that the debtor incurred the Loans solely to pay for the “cost of attendance.” See 20 U.S.C. § 108711(1) — (3) (1997) (defining “cost of attendance” to include tuition and fees, and certain allowances as determined by the institution); see also 26 C.F.R. § 1.221-l(e)(4) Example 6 (interpreting section 221 of the IRC and suggesting that if an individual incurs debt, in part to pay for “qualified higher education expenses” and in part for some other purpose, the debt will not be" }, { "docid": "2297165", "title": "", "text": "the district court’s exercise of jurisdiction over him on the ground he is a nonresident alien exempt from the tax laws. We review a question of jurisdiction de novo. United States v. Endicott, 803 F.2d 506, 514 (9th Cir.1986). It is firmly established that district courts have subject matter jurisdiction over prosecutions for violations of the tax laws. “Under 18 U.S.C. § 3231, federal district courts have exclusive original jurisdiction over ‘all offenses against the laws of the United States.’ These offenses include crimes defined in Title 26 of United States Code.” United States v. Studley, 783 F.2d 934 (9th Cir.1986) (citation omitted). Hanson claims that as a natural born citizen of Montana he is a nonresident alien and, thus, is not a “taxpayer” as defined in the tax code. Accordingly, he contends that he is not subject to the tax laws. In Studley, we rejected a similar argument as “utterly meritless,” holding that “[a]n individual is a ‘person’ under the Internal Revenue Code and thus subject to [Title 26].” Id. at 937 & n. 3. Thus, Hanson is subject to the provisions of the tax code and the district court’s exercise of jurisdiction was proper. III. Hanson contends the evidence was insufficient to support his convictions. In reviewing this claim, we consider the evidence in the light most favorable to the government to determine if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. United States v. Adler, 879 F.2d 491, 495 (9th Cir.1988). The government correctly notes that Hanson failed to preserve this issue on appeal because he did not move for a judgment of acquittal at trial. United States v. Smith, 924 F.2d 889, 893 (9th Cir.1991). This court may review the sufficiency of the evidence only to prevent a “manifest miscarriage of justice.” Id. (citation omitted). Nevertheless, even if Hanson had preserved the issue, we find the evidence was sufficient to support the convictions under both 26 U.S.C. §§ 7206(1) and 7212(a). A. 26 U.S.C. § 7206(1) To prove a violation of § 7206(1), making false statements," }, { "docid": "2297164", "title": "", "text": "$46,996,669.41 in non-employee compensation from three Farmers Home Administration (“FHA”) employees. Since he had intended to report having paid that amount to the FHA employees rather than having received it, he later filed a corrected form 1096 stating that he had not received any payment. He subsequently filed a third set of 1096 and 1099 forms declaring that he had paid the three FHA officials $46,996,669.41. Hanson reported payments of $31,381,112.94 to two other FHA employees on forms 1096 and 1099 for 1990. None of the purported payments was ever made. Hanson also filed a 1989 Form 1040 tax return falsely claiming a refund of $33,837,-602 generated by income and withholdings of $46,996,669.44. He was neither paid nor owed the reported amounts. Hanson was charged with four counts of making false statements and one count of attempting to interfere with the administration of the IRS. At trial, Hanson represented himself. The jury convicted him on all five counts. He was sentenced to 12 months in prison with one year of supervised release. II. Hanson challenges the district court’s exercise of jurisdiction over him on the ground he is a nonresident alien exempt from the tax laws. We review a question of jurisdiction de novo. United States v. Endicott, 803 F.2d 506, 514 (9th Cir.1986). It is firmly established that district courts have subject matter jurisdiction over prosecutions for violations of the tax laws. “Under 18 U.S.C. § 3231, federal district courts have exclusive original jurisdiction over ‘all offenses against the laws of the United States.’ These offenses include crimes defined in Title 26 of United States Code.” United States v. Studley, 783 F.2d 934 (9th Cir.1986) (citation omitted). Hanson claims that as a natural born citizen of Montana he is a nonresident alien and, thus, is not a “taxpayer” as defined in the tax code. Accordingly, he contends that he is not subject to the tax laws. In Studley, we rejected a similar argument as “utterly meritless,” holding that “[a]n individual is a ‘person’ under the Internal Revenue Code and thus subject to [Title 26].” Id. at 937 & n." }, { "docid": "16961598", "title": "", "text": "unnatural, must pay federal income tax on their wages,” regardless of whether they requested, obtained or exercised any privilege from the federal government. Lovell, 755 F.2d at 519; United States v. Studley, 783 F.2d 934, 937 (Studley’s argument that \"she is not a 'taxpayer’ because she is an absolute, freeborn and natural individual ... is frivolous. An individual is a 'person’ under the Internal Revenue Code.”). Moreover, the tax code imposes a \"direct nonapportioned [income] tax upon United States citizens throughout the nation, not just in federal enclaves,” such as postal offices and Indian reservations. United States v. Collins, 920 F.2d 619, 629 (10th Cir.1990), cert. denied, 500 U.S. 920, 111 S.Ct. 2022, 114 L.Ed.2d 108 (1991) (citing Brushaber v. Union Pacific R.R., 240 U.S. 1, 12-19, 36 S.Ct. 236, 239-42, 60 L.Ed. 493 (1916)). . In addition to jurisdictional challenges, the Bells contend the filing of this action without an administrative paper trail from the Secretary of the Treasury to IRS employees and enforcement powers to United States Attorney Jennings is in some form extra-statutory. This is incorrect. \"To [the] list of rejected tax protester arguments we now add as equally meritless the additional [argument] ... that (1) the Commissioner of Internal Revenue and employees of the Internal Revenue Service have no power or authority to administer the Internal Revenue laws, including power to issue summons, liens and levies, because of invalid or nonexistent delegations of authority,\" Lonsdale v. United States 919 F.2d 1440, 1448 (10th Cir.1990). “Acts done by a public officer 'which presuppose the existence of other acts to make them legally operative, are presumptive proofs of the latter.' ” Stearns v. United States, 291 U.S. 54, 54 S.Ct. 325, 78 L.Ed. 647 (1934). Defendants Bell also argue the Secretary of Treasury’s authority is limited by a definition of the \"United States” that encompasses only territories and possessions such as the \"Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa” (Def.Brief, p. 6, 11) but not the contiguous 48 states, Hawaii and Alaska. Defendants Bell reach this outcome \"by interpreting the term ‘include’ [as used" }, { "docid": "16961596", "title": "", "text": "see also United States v. Melton, No. 94-5535, 1996 WL 271468 (4th Cir.1996) (rejecting defendants' \"excise tax” and not persons liable for federal income tax arguments noting, \"the debate over whether the income tax is an excise tax or a direct tax is irrelevant to the obligation of citizens to pay taxes and file returns.”); United States v. Hooper, No. 95-35565, 1995 WL 792039, at n. 1 (9th Cir.1995) (following Romero); United States v. Cooper, No. 95-5078, 1995 WL 559304, (6th Cir. Sept.20, 1995) (rejecting as \"patently frivolous\" defendant’s assertion that the district court lacked jurisdiction over him because he was a state citizen, not a United States citizen); Benson v. United States, Nos. 94— 4182, 95-4061, 1995 WL 674615, (10th Cir.1995) (following Lonsdale), cert. denied, — U.S.-, 117 S.Ct. 143, 136 L.Ed.2d 90 (1996); United States v. Keys, No. 92-3729, 1993 WL 101442 (6th Cir.1993) (rejecting the \"not a taxpayer” argument); United States v. Kitsos, No. 91-2763, 1992 WL 164290, (7th Cir. 1992) (following Sloan); LaRue v. United States, 959 F.Supp. 959 (C.D.Ill.1997) (rejecting and imposing sanctions against plaintiff relating to plaintiffs’ claims that they were a \"nonresident alien” not subject to tax and that the State of Illinois was not a state as defined in the Internal Revenue Code); United States v. Rhodes, 921 F.Supp. 261, 264 (M.D.Pa.1996) (rejecting not a person subject to taxation argument citing Sloan); accord, Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991) (In addressing the \"willfulness” of failure to file tax returns, the Supreme Court described as “surely frivolous” the arguments that individuals \"were not taxpayers within the meaning of the tax laws, that wages are not income, that the Sixteenth Amendment does not authorize the imposition of an income tax on individuals, and that the Sixteenth Amendment is unenforceable.’’). \"Likewise meritless are respondents' assertions that they are not residents of the United States, although residents of the State of Michigan, and therefore not subject to federal taxation.” See United States v. Mundt, 29 F.3d 233, 237 (6th Cir.1994) (rejecting argument as frivolous). .\"All individuals, natural or" }, { "docid": "12313300", "title": "", "text": "issue here involve tax liens placed on land within the United States, making the immunity of the FSIA unavailable”). See also United States v. Sloan, 939 F.2d 499, 500-01 (7th Cir.1991) (rejecting as frivolous a taxpayer’s argument that he was “not a citizen of the United States, but rather, that he is a freeborn, natural individual ..., [and was] not subject to 'the jurisdiction of the laws of the United States”); Stoecklin v. C.I.R., 865 F.2d 1221, 1224 (11th Cir.1989) (rejecting as frivolous a taxpayer’s argument that he was a “freeborn and sovereign” person and was, therefore, not subject to income tax laws); Lonsdale v. United States, 919 F.2d 1440, 1447 (10th Cir.1990) (rejecting as frivolous taxpayer’s argument that “free born, white, preamble, sovereign, natural, individual common law de jure citizens of a state” are not subject to taxation under the Internal Revenue Code); United States v. Dawes, 874 F.2d 746, 751 (10th Cir.1989) (rejecting an individual’s assertion that he was a “sovereign” exempt from taxes); United States v. Studley, 783 F.2d 934, 937 (9th Cir.1986) (rejecting as frivolous a taxpayer’s assertion that he was “an absolute, freeborn and natural individual” and thus not a “taxpayer”). The court accordingly rejects the Boyces’ argument that they are immune' from the nation’s tax laws and beyond the exercise of the court’s jurisdiction. In sum, the Boyces’ jurisdictional arguments lack merit, and the court turns to the merits of the government’s motion. B. Standard Governing Motions for Summary Judgment A motion for summary judgment must be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.CivPRoa 56(c). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323," }, { "docid": "7837586", "title": "", "text": "CWA). Moreover, this court has interpreted similar terms in other statutes consistently with the Court’s decision in Park. For example, the Internal Revenue Code (IRC) holds liable any “person required to collect, truthfully account for, and pay over any tax” under the IRC. 26 U.S.C. § 6672(a). The IRC defines “person” to include any “officer ... under a duty to perform the act in respect of which the violation occurs.” 26 U.S.C. § 6671(b). This court consistently has interpreted the term “person” to include corporate officers with authority to pay taxes, whether or not they exercise that authority. In United States v. Graham, 309 F.2d 210, 212 (9th Cir.1962), a member of the board of directors argued that he could not be a “person” as that term is used in 26 U.S.C. § 6671(b). This court rejected that argument, holding, instead: The statute’s purpose is to permit the taxing authority to reach those responsible for the corporation’s failure to pay the taxes which are owing.... The question is simply whether the board of directors had the final word as to what bills should or should not be paid, and when. Id. (citation and internal quotation marks omitted). More recently, in Purcell v. United States, 1 F.3d 932, 936 (9th Cir.1993), this court addressed a corporate president’s argument that he was not a responsible “person” under the IRC, because he had delegated the actual decision-making to a subordinate. This court held: That an individual’s day-to-day function in a given enterprise is unconnected to financial decision making or tax matters is irrelevant where that individual has the authority to pay or to order the payment of delinquent taxes.... [Thus] , we conclude that an individual may be said to have had the final word as to what bills should or should not be paid if such individual had the authority required to exercise significant control over the corporation’s financial affairs, regardless of whether he exercised such control in fact. Id. at 937 (citation and internal quotation marks omitted). See also Muck v. United States, 3 F.3d 1378, 1380-81 (10th Cir.1993) (“Plaintiff argues" }, { "docid": "16961597", "title": "", "text": "and imposing sanctions against plaintiff relating to plaintiffs’ claims that they were a \"nonresident alien” not subject to tax and that the State of Illinois was not a state as defined in the Internal Revenue Code); United States v. Rhodes, 921 F.Supp. 261, 264 (M.D.Pa.1996) (rejecting not a person subject to taxation argument citing Sloan); accord, Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991) (In addressing the \"willfulness” of failure to file tax returns, the Supreme Court described as “surely frivolous” the arguments that individuals \"were not taxpayers within the meaning of the tax laws, that wages are not income, that the Sixteenth Amendment does not authorize the imposition of an income tax on individuals, and that the Sixteenth Amendment is unenforceable.’’). \"Likewise meritless are respondents' assertions that they are not residents of the United States, although residents of the State of Michigan, and therefore not subject to federal taxation.” See United States v. Mundt, 29 F.3d 233, 237 (6th Cir.1994) (rejecting argument as frivolous). .\"All individuals, natural or unnatural, must pay federal income tax on their wages,” regardless of whether they requested, obtained or exercised any privilege from the federal government. Lovell, 755 F.2d at 519; United States v. Studley, 783 F.2d 934, 937 (Studley’s argument that \"she is not a 'taxpayer’ because she is an absolute, freeborn and natural individual ... is frivolous. An individual is a 'person’ under the Internal Revenue Code.”). Moreover, the tax code imposes a \"direct nonapportioned [income] tax upon United States citizens throughout the nation, not just in federal enclaves,” such as postal offices and Indian reservations. United States v. Collins, 920 F.2d 619, 629 (10th Cir.1990), cert. denied, 500 U.S. 920, 111 S.Ct. 2022, 114 L.Ed.2d 108 (1991) (citing Brushaber v. Union Pacific R.R., 240 U.S. 1, 12-19, 36 S.Ct. 236, 239-42, 60 L.Ed. 493 (1916)). . In addition to jurisdictional challenges, the Bells contend the filing of this action without an administrative paper trail from the Secretary of the Treasury to IRS employees and enforcement powers to United States Attorney Jennings is in some form" }, { "docid": "23667337", "title": "", "text": "his contention that he is not a citizen of the United States, but rather, that he is a freeborn, natural individual, a citizen of the State of Indiana, and a “master” — not “servant” — of his government. As a result, he claims that he is not subject to the jurisdiction of the laws of the United States. This strange argument has been previously rejected as well. “All individuals, natural or unnatural, must pay federal income tax on their wages,” regardless of whether they requested, obtained or exercised any privilege from the federal government. Lovell, 755 F.2d at 519; cf. Studley, 783 F.2d at 937 (Studley’s argument that “she is not a ‘taxpayer’ because she is an absolute, freeborn and natural individual ... is frivolous. An individual is a ‘person’ under the Internal Revenue Code.”). Moreover, the tax code imposes a “direct nonapportioned [income] tax upon United States citizens throughout the nation, not just in federal enclaves,” such as postal offices and Indian reservations. United States v. Collins, 920 F.2d 619, 629 (10th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 2022, 114 L.Ed.2d 108 (1991) (citing Brushaber v. Union Pacific R.R., 240 U.S. 1, 12-19, 36 S.Ct. 236, 239-42, 60 L.Ed. 493 (1916)). Mr. Sloan’s proposition that he is not subject to the jurisdiction of the laws of the United States is simply wrong. The foregoing recitation of federal court rulings rejecting his taxation principles really comes as no surprise to Mr. Sloan for he has shown himself to be aware of existing ease law in this area. In fact, in order to make plain his position Mr. Sloan states categorically that “I DO NOT ‘misunderstand the law.’ I am not raising a constitutional challenge to the taxing statutes. This is a question of whether I can be charged with a crime for violating a legal duty when no one will show me where that legal duty exists.” See “Appellant Sloan’s Notice of Standard” at 10 (filed July 1, 1991). We will treat Mr. Sloan’s question as a challenge to the legal sufficiency of the indictment which charged him" }, { "docid": "23632810", "title": "", "text": "United States Tax Court “to provide taxpayers with a means of challenging assessments made by the Commissioner without first having to pay the alleged deficiency. Without such a forum, taxpayers would have to pay the asserted deficiency and then initiate a suit in federal district court for a refund.” Samuels, Kramer & Co. v. Comm’r, 930 F.2d 975, 979 (2d Cir.1991). As an Article I court, the tax court is a court of “strictly limited jurisdiction.” Kelley v. Comm’r, 45 F.3d 348, 351 (9th Cir.1995). A notice of deficiency issued by the IRS pursuant to § 6212 is the taxpayer’s jurisdictional “ticket to the Tax Court.” Bokum v. Comm’r, 992 F.2d 1136, 1139 (11th Cir.1993) (quoting Stoecklin v. Comm’r, 865 F.2d 1221, 1224 (11th Cir.1989)); Spector v. Comm’r, 790 F.2d 51, 52 (8th Cir.1986) (per curiam) (citing Laing v. United States, 423 U.S. 161, 165, 96 S.Ct. 473, 46 L.Ed.2d 416 n. 4 (1976), and holding that “the determination of a deficiency and the issue of a notice of deficiency is an absolute precondition to tax court jurisdiction”). Accordingly, the IRC provides that the tax court has jurisdiction over petitions for review from determinations regarding the availability of § 6015 relief only where a deficiency has been asserted against the taxpayer. § 6015(e)(1). The IRS did not determine a deficiency against Bartman for tax year 1997. Bartman cites Ewing v. Comm’r, 118 T.C. 494, 2002 WL 1150775 (2002), where the tax court found that it had jurisdiction to review a petition from a denial of a request for § 6015 relief, despite the fact that no notice of deficiency had been issued. Since briefing and oral argument in this case, however, the Ninth Circuit reversed the tax court and held that the tax court has no jurisdiction under § 6015(e) to consider a petition for review where no deficiency was determined by the IRS. Comm’r v. Ewing, 439 F.3d 1009, 1012-14 (9th Cir.2006). We agree with the Ninth Circuit that the tax court lacks jurisdiction under § 6015(e) unless a deficiency was asserted against the individual petitioning for review. The" }, { "docid": "8814457", "title": "", "text": "the appellants. The statements appellants made in the Just Say No advertisement are clearly false representations concerning the government’s authority to tax its citizens. See, e.g., United States v. Hilgeford, 7 F.3d 1340, 1342 (7th Cir.1993) (stating that the argument that an individual is a sovereign citizen of a state who is not subject to the jurisdiction of the United States and not subject to federal taxing authority is “shop worn” and frivolous); United States v. Sloan, 939 F.2d 499, 500-01 (7th Cir.1991) (same); Coleman v. Commissioner of Internal Revenue, 791 F.2d 68, 70-72 (7th Cir.1986) (stating that the assertions that the federal income tax is not a tax on all income, that wages are not income, and that a tax on wages is unconstitutional are “tired arguments” that are “objectively frivolous”); Kile v. Commissioner of Internal Revenue, 739 F.2d 265, 267-68 (7th Cir.1984) (noting the “universal and longstanding rejection” of the argument that wages are not subject to income tax and that the federal income tax is unconstitutional). These statements made in conjunction with the sale of the Program operated as false assurances that refusing to pay taxes in accordance with the Program’s instructions is a lawful activity for which the government has no legal authority to punish Program subscribers. As the district court noted, the appellants are intelligent men. Bernhoft has recently graduated from the University of Wisconsin Law School. Raymond has run his own business for twenty years and was the U.S. Taxpayers Party’s candidate for the United States Senate. We attribute to both appellants a basic knowledge of the law such that they should reasonably be aware that their personal belief that paying taxes is a voluntary activity does not represent the current state of the law. Therefore, we conclude that the statements the appellants made in the Just Say No advertisement were representations concerning the tax benefits of purchasing and following the De-Taxing America Program that the appellants reasonably should have known were false. Because the appellants participated in the sale of the abusive tax shelter that is the De-Taxing America Program and because the" }, { "docid": "23667336", "title": "", "text": "are income, United States v. Koliboski, 732 F.2d 1328, 1329 & n. 1 (7th Cir.1984). As another cornerstone of his position, Mr. Sloan cites Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984), for the proposition that the tax code provisions establishing an income tax are an unlawful agency interpretation of a statute because the Congress clearly did not intend to impose a tax on income. His argument, of course, is based on the false premise described above. Congress lawfully enacted the Internal Revenue Code and the Internal Revenue Code lawfully imposes a tax on income. See, e.g., Coleman, 791 F.2d at 70; United States v. Studley, 783 F.2d 934, 940 (9th Cir.1986); Wheeler v. United States, 744 F.2d 292, 293 (2d Cir.1984); Koliboski, 732 F.2d at 1329. Thus, the prosecution of persons for tax evasion under federal criminal law presents no issue of deference to an agency’s interpretation of federal statutes. Also basic to Mr. Sloan’s “freedom from income tax theory” is his contention that he is not a citizen of the United States, but rather, that he is a freeborn, natural individual, a citizen of the State of Indiana, and a “master” — not “servant” — of his government. As a result, he claims that he is not subject to the jurisdiction of the laws of the United States. This strange argument has been previously rejected as well. “All individuals, natural or unnatural, must pay federal income tax on their wages,” regardless of whether they requested, obtained or exercised any privilege from the federal government. Lovell, 755 F.2d at 519; cf. Studley, 783 F.2d at 937 (Studley’s argument that “she is not a ‘taxpayer’ because she is an absolute, freeborn and natural individual ... is frivolous. An individual is a ‘person’ under the Internal Revenue Code.”). Moreover, the tax code imposes a “direct nonapportioned [income] tax upon United States citizens throughout the nation, not just in federal enclaves,” such as postal offices and Indian reservations. United States v. Collins, 920 F.2d 619, 629 (10th Cir.1990), cert." }, { "docid": "16961595", "title": "", "text": "of Character”, August 20, 1998. . Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir.1991) (affidavits or other material provided by a pro se litigant must create a genuine issue for trial that could lead a trier of fact to find in the non-movant's favor). . See United States v. Sloan, 939 F.2d 499, 501 (7th Cir.1991) (rejecting assertions that an individual was \"not a taxpayer” and \"not a person\" subject to the tax laws as \"simply wrong”), cert. denied, 502 U.S. 1060, 112 S.Ct. 940, 117 L.Ed.2d 110 (1992); Lonsdale v. United States, 919 F.2d 1440, 1448 (10th Cir.1990) (rejecting argument that citizen of a state is \"not a person” under the Internal Revenue Code as \"completely lacking in legal merit and patently frivolous”); United States v. Dawes, 874 F.2d 746, 751 (10th Cir.1989) (rejecting individual’s assertion of being a \"sovereign” exempt from taxes); United States v. Romero, 640 F.2d 1014, 1016 (9th Cir.1981) (rejecting assertion that individual was \"not a person” subject to the tax laws as “fatuous” as well as \"obviously incorrect”); see also United States v. Melton, No. 94-5535, 1996 WL 271468 (4th Cir.1996) (rejecting defendants' \"excise tax” and not persons liable for federal income tax arguments noting, \"the debate over whether the income tax is an excise tax or a direct tax is irrelevant to the obligation of citizens to pay taxes and file returns.”); United States v. Hooper, No. 95-35565, 1995 WL 792039, at n. 1 (9th Cir.1995) (following Romero); United States v. Cooper, No. 95-5078, 1995 WL 559304, (6th Cir. Sept.20, 1995) (rejecting as \"patently frivolous\" defendant’s assertion that the district court lacked jurisdiction over him because he was a state citizen, not a United States citizen); Benson v. United States, Nos. 94— 4182, 95-4061, 1995 WL 674615, (10th Cir.1995) (following Lonsdale), cert. denied, — U.S.-, 117 S.Ct. 143, 136 L.Ed.2d 90 (1996); United States v. Keys, No. 92-3729, 1993 WL 101442 (6th Cir.1993) (rejecting the \"not a taxpayer” argument); United States v. Kitsos, No. 91-2763, 1992 WL 164290, (7th Cir. 1992) (following Sloan); LaRue v. United States, 959 F.Supp. 959 (C.D.Ill.1997) (rejecting" } ]

[ { "docid": "23083197", "title": "", "text": "v. Bechtel Petroleum, Inc., 780 F.2d 766, 772 (9th Cir.1986). Plaintiff’s tacit premise is that, where the district court makes “findings” in deciding a summary judgment motion, the use of the term “findings” alone converts such findings into findings of fact made pursuant to Rule 52(a), therefore the Rule 52(b) procedure to amend such findings becomes available. This is not correct. If plaintiff’s premise were correct, then “findings” on summary judgment decisions, converted into Rule 52(a) findings of fact, also would be reviewed pursuant to the “clearly erroneous” standard set forth in Rule 52(a). This is clearly not the law. See Heiniger, 625 F.2d at 843-44; see also Jenney v. United States, 755 F.2d 1384, 1386 (9th Cir.1985). 2. Rule 59(e) Plaintiff also asserts that this court’s judgment was subject to a motion to alter or amend pursuant to Rule 59(e). A litigant may move the court to reconsider a grant of summary judgment pursuant to Rule 59(e) or Rule 60(b). However, to avoid being frivolous, such a motion must provide a valid ground for reconsideration. See MGIC Indemnity Corp. v. Weisman, 803 F.2d 500, 505 (9th Cir.1986). A motion for reconsideration must do two things. First, it must demonstrate some reason why the court should reconsider its prior decision. Second, it must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. Courts have distilled three major grounds justifying reconsideration: (1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice. Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D.Cal.1986); see also Major v. Benton, 647 F.2d 110, 112 (10th Cir.1981). Defendant opposed plaintiffs motion to alter or amend, inter alia, on the ground that plaintiff had failed to provide any justification for the motion. This court agreed. Nevertheless, in asserting that no sanctions should be assessed, plaintiff still fails to provide any justification for bringing the motion. A. “New” Evidence Plaintiff asserts that it is “absolutely proper” for it to urge the" } ]

[ { "docid": "1476560", "title": "", "text": "871 F.2d at 805 (construing reconsideration motion labeled as Rule 60 motion as a Rule 59 motion, because it was filed eight days after entry of summary judgment, within the time period for Rule 59(e)). 1. Rule 59(e) “A motion for reconsideration of summary judgment is appropriately brought under Rule 59(e).” Backlund, 778 F.2d at 1388 (citing Stephenson, 652 F.2d at 811). Rule 59(e) reconsideration is appropriate where: the district court is presented with newly-discovered, evidence or committed clear error; the initial decision was manifestly unjust; or if there is an intervening change in controlling law. See 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.1999) (citing Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993) (hereinafter “Sch. Dist. No. 1J ”) (citing All Haw. Tours, Inc. v. Polynesian Cultural Ctr., 116 F.R.D. 645, 648 (D.Haw. 1987), rev’d on other grounds, 855 F.2d 860, 1988 WL 86203 (9th Cir.1988))). A reconsideration motion should not merely present arguments previously raised, or which could have been raised in the initial summary judgment motion. See Backlund, 778 F.2d at 1388 (“The motion was properly denied here because ... it presented no arguments that had not already been raised in opposition to summary judgment.”); United States v. Navarro, 972 F.Supp. 1296, 1299 (E.D.Cal.1997) (“[Mjotions to reconsider are not vehicles permitting the unsuccessful party to ‘rehash’ arguments previously presented.... Nor is a motion to reconsider justified on the basis of new evidence which could have been discovered prior to the court’s ruling.... Finally, ‘after thoughts’ or ‘shifting of ground’ do not constitute an appropriate basis for reconsideration.”) (citations omitted). “These relatively restrictive standards ‘reflect district courts’ concern for preserving dwindling resources and promoting judicial efficiency.’ ” Navarro, 972 F.Supp. at 1299 (quoting Costello v. United States Gov’t, 765 F.Supp. 1003, 1009 (C.D.Cal.1991)) (alteration omitted). 2. Rub 60 Rule 60(b) permits reconsideration of a district court order based on: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly-discovered evidence that supports grounds for a new trial under Rule 59; (3) fraud by an adverse party; (4)" }, { "docid": "1476562", "title": "", "text": "the judgment is void; (5) the judgment has been satisfied, released or discharged; or (6) any other reason justifying relief from the operation of the judgment. See Fed.R.Civ.P. 60(b)(1)-(b)(6) (1992). Rule 60 reconsideration is generally appropriate in three instances: 1) when there has been an intervening change of controlling law, 2) new evidence has come to light, or 8) when necessary to correct a clear error or prevent manifest injustice. Sch. Dist. No. 1J, 5 F.3d at 1262; see also E.D. Cal. L.R. 78—280(k). “A motion for reconsideration is not a vehicle to 'reargue the motion or to present evidence which should have been raised before.” Bermingham v. Sony Corp. of Am., Inc., 820 F.Supp. 834, 856 (D.N.J. 1992), aff'd, 37 F.3d 1485 (3d Cir.1994) (citing Weyerhaeuser Corp. v. Koppers Co., 771 F.Supp. 1406, 1419 (D.Md.1991)). “ ‘A party seeking reconsideration must show more than a disagreement with the Court’s decision, and “recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party’s burden.” ’ ” Id. at 856-57 (quoting G-69 v. Degnan, 748 F.Supp. 274, 275 (D.N.J.1990)) (quoting Carteret Sav. Bank, F.A. v. Shushan, 721 F.Supp. 705, 709 (D.N.J.1989)). To succeed, a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. See, e.g., Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D.Cal.1986), aff'd in part and rev’d in part on other grounds, 828 F.2d 514 (9th Cir.1987). IV. DISCUSSION A. Reconsideration The water-users meet the requirements for reconsideration under Rule 60, because a clear error may have been made in, or a manifest injustice may occur as a result of, the 1997 memorandum decision’s finding that Barcellos is dispositive of the contractual interpretation issues presented. B. Impact of the 1990 Barcellos decision Before a re-interpretation of the 1963 Contract, the Recordable Contracts, and the 1986 Barcellos Judgment can be performed, the extent to which the 1990 Bar-cellos appellate decision interprets then-disputed provisions as an explicit holding (rather than dicta), which is law of the" }, { "docid": "19436079", "title": "", "text": "claims that the discretionary process itself was constitutionally flawed are cognizable in federal court on habeas because they fit comfortably within the scope of § 2241.\") (citations omitted). And most recently in Jennings, the Supreme Court concluded that section 1226(e) does not bar constitutional or legal challenges. Jennings, 138 S.Ct. at 841 (\"[B]ecause the extent of the Government's detention authority is not a matter of 'discretionary judgment,'...respondent's challenge to 'the statutory framework that permits [their] detention without bail,' falls outside of the scope of § 1226(e).\"). In sum, immigrants detained under section 1231(a)(6), like Liborio Ramos, remain entitled to bond hearings whereby the Government must show their dangerousness or flight risk by clear and convincing evidence every six months, notwithstanding the Supreme Court's recent ruling in Jennings. It remains clear that the Court has jurisdiction over this case. III. EXHAUSTION The Government next argues that Liborio Ramos's motion should be denied because she did not administratively exhaust her claim. ECF No. 25 at 6. As this Court explained in its prior order, exhaustion is a prudential concern. ECF No. 19 at 4. The Ninth Circuit has made clear that administrative exhaustion will not deprive a court of jurisdiction to review an immigration bond determination. Hernandez v. Sessions, 872 F.3d 976, 988-89 (9th Cir. 2017). In any case, although Liborio Ramos did not appeal the IJ's second bond decision to the BIA, she was not required to do so. Liborio Ramos filed a motion to enforce this Court's prior order, and she need not seek administrative review before filing a motion to enforce that order. Harvest v. Castro, 520 F.3d 1055 (9th Cir. 2008) (concluding that a district court has jurisdiction to enforce its prior conditional order on a petition for habeas corpus). Another court in this district concluded that an immigrant need not appeal to the BIA before filing a motion to enforce. Sales, 2017 WL 6855827, at *7 (\"Respondents have cited no authority for the proposition that a litigant must exhaust administrative remedies before filing a motion to enforce a final judgment. Furthermore, Petitioner contends that there is no" }, { "docid": "18140467", "title": "", "text": "2005. STANDARD OF REVIEW In the Ninth Circuit a successful motion for reconsideration must accomplish two goals. First it must demonstrate some reason why the court should reconsider its prior decision. Na Mamo O ‘Aha ‘Ino v. Galiher, 60 F.Supp.2d 1058, 1059 (D.Hawai’i 1999) (citation omitted). Second, a motion for reconsideration must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. Id. Courts have established three grounds justifying reconsideration: (1) an intervening change in controlling law; (2) the availability of. new evidence; and (3) the need to correct clear error or prevent manifest injustice. Mustafa v. Clark County Sch. Dist., 157 F.3d 1169, 1178-79 (9th Cir.1998); Great Hawaiian Financial Corp. v. Aiu, 116 F.R.D. 612, 616 (D.Haw.1987), rev’d on other grounds, 863 F.2d 617 (9th Cir.1988). The District of Hawaii has implemented these standards in Local Rule 60.1. Mere disagreement with a previous order is an insufficient basis for reconsideration. See Leong v. Hilton Hotels Corp., 689 F.Supp. 1572 (D.Haw.1988). Furthermore, reconsideration may not be based on evidence and legal arguments that could have been presented at the time of the challenged decision. See Kona Enter., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.2000); All Hawaii Tours, Corp. v. Polynesian Cultural Ctr., 116 F.R.D. 645, 649-50 (D.Haw.1987), rev’d on other grounds, 855 F.2d 860 (9th Cir.1988). “Whether or not to grant reconsideration is committed to the sound discretion of the court.” Navajo Nation v. Confederated Tribes and Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir.2003) (citing Kona Enter., Inc., 229 F.3d at 883). DISCUSSION I. ADMIRALTY/MARITIME JURISDICTION HSI argues that the Court has jurisdiction under Title 28, United States Code § 1333 (“Section 1333”), which provides in relevant part: The district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled. 28 U.S.C.A. § 1333. HSI contends that “this case concerns maritime activity within the State" }, { "docid": "21241281", "title": "", "text": "have the power to “alter or amend” a judgment by motion under Rule 59(e). Fed.R.Civ.P. 59(e). Rule 59(e) provides an efficient mechanism by which the trial court can correct otherwise erroneous judgment without implicating the appellate process. Clipper Exxpress v. Rocky Mt. Motor Traffic Bureau, 674 F.2d 1252 (9th Cir.1982). Any motion which enables the trial judge to reconsider the validity of the judgment and vacate or alter as he sees fit is valid. Id. Generally, the grounds for a motion under Federal Rule of Civil Procedure 59(e) are: (1) newly discovered evidence; (2) commission of clear error by the district court; or (3) an intervening change in the governing law. School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993). A trial court properly acts within its discretion in denying a Rule 59(e) motion where the verdict is not manifest error of law. Turner v. Burlington Northern Santa Fe R.R., 338 F.3d 1058 (9th Cir.2003). A party may not present arguments or evidence for the first time in a Rule 59(e) motion if they could reasonably have presented such arguments or evidence earlier in the litigation. Carroll v. Nakatani, 342 F.3d 934, 935 (9th Cir.2003). B. Rule 59(a) Motion for New Trial Under Rule 59(a), a new trial may be granted to all or any parties on all or part of the issues, after trial. A partial new trial is proper only if the issue to be retried is “so distinct and separable from the others that a trial of it alone may be had without injustice.” Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 500, 51 S.Ct. 513, 75 L.Ed. 1188 (1931); Pumphrey v. K.W. Thompson Tool Co., 62 F.3d 1128, 1133 (9th Cir.1995). A partial new trial solely on damages may be ordered so long as it does not involve a tangled or complex fact situation that makes it unfair to determine damages apart from liability. Wharf v. Burlington Northern R.R. Co., 60 F.3d 631, 638 (9th Cir.1995) (no injustice resulting from retrial on damages only, without reopening liability" }, { "docid": "1476559", "title": "", "text": "on summary judgment, however, is not to weigh the evidence, i.e., issue resolution, but rather to find genuine factual issues. See Abdul-Jabbar v. Gen. Motors Corp., 85 F.3d 407, 410 (9th Cir.1996). B. Reconsideration “[A] motion for reconsideration of summary judgment is appropriately brought under either Rule 59(e) or Rule 60(b).” Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir.1991) (citing Taylor v. Knapp, 871 F.2d 803, 805 (9th Cir.1989) (citing Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir.1985) (citing Stephenson v. Calpine Conifers II, Ltd., 652 F.2d 808, 811 (9th Cir.1981)))). A 59(e) motion must be brought no later than ten (10) days following entry of the final judgment, see Fed.R.Civ.P. 59(e) (1992), whereas a 60(b) motion must be brought within a “reasonable” time, which cannot be more than one year if the motion is based on mistake ((b)(1)), newly-discovered evidence ((b)(2)), or fraud ((b)(3)), see Fed.R.Civ.P. 60(b)(l)-(b)(3) (1992). A Rule 59(e) motion for reconsideration that is filed outside the ten-day period may be interpreted as a Rule 60(b) motion. Accord Taybr, 871 F.2d at 805 (construing reconsideration motion labeled as Rule 60 motion as a Rule 59 motion, because it was filed eight days after entry of summary judgment, within the time period for Rule 59(e)). 1. Rule 59(e) “A motion for reconsideration of summary judgment is appropriately brought under Rule 59(e).” Backlund, 778 F.2d at 1388 (citing Stephenson, 652 F.2d at 811). Rule 59(e) reconsideration is appropriate where: the district court is presented with newly-discovered, evidence or committed clear error; the initial decision was manifestly unjust; or if there is an intervening change in controlling law. See 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.1999) (citing Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993) (hereinafter “Sch. Dist. No. 1J ”) (citing All Haw. Tours, Inc. v. Polynesian Cultural Ctr., 116 F.R.D. 645, 648 (D.Haw. 1987), rev’d on other grounds, 855 F.2d 860, 1988 WL 86203 (9th Cir.1988))). A reconsideration motion should not merely present arguments previously raised, or which could have been raised" }, { "docid": "2925543", "title": "", "text": "the parties and on all or part of the issues ... (2) in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of the United States.” Under Rule 9023, “[a] motion to alter or amend a judgment must be filed no later than [14] days after the entry of the judgment.” Rule 59(e) in- eludes motions for reconsideration. Backhand v. Barnhart, 778 F.2d 1386, 1388 (9th Cir.1985); 11 Wright, Miller & Kane, FEDERAL PRACTICE AND PROCEDURE: CÍVÍ1 2nd § 2810.1. In Brandt v. Esplanade of Central Montana, Inc., et al. (“Brandt”), 19 Mont. B.R. 401, 403 (D.Mont.2002), the District Court, in affirming this Court’s decision, discussed amendment of an order under Rule 59(e): “Amendment or alteration is appropriate under Rule 59(e) if (1) the district court is presented with newly-discovered evidence, (2) the district court committed clear error or made an initial decision that was manifestly unjust, or (3) there is an intervening change in controlling law. School Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993).” See also In re Teigen, 11 Mont. B.R. 91, 92 (Bankr.D.Mont.1992). Absent highly unusual circumstances, a motion for reconsideration should not be granted if the above test is not met. 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.1999). Finally, a Rule 59(e) motion may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation. Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.2000). DISCUSSION Tim first argues this Court made a factual error when it refused to abstain because this “Court was under the erroneous impression that no parallel action had been commenced in the California Superi- or Court to enforce the terms of the Marital Settlement Agreement entered between Mr. Blixseth and the Debtor, Edra Blixseth.” The Court’s impression, if erroneous, was formed from the argument and evidence presented by Tim’s counsel. In the brief filed in support of" }, { "docid": "22559021", "title": "", "text": "due process claim, the appeal from the district court’s denial is moot in light of our holding that Plaintiffs are entitled to proceed with that claim. To the extent, however, that the motion sought to alter or amend the judgment with respect to Plaintiffs’ other claims, the appeal is not moot. Amendment or alteration is appropriate under Rule 59(e) if (1) the district court is presented with newly discovered evidence, (2) the district court committed clear error or made an initial decision that was manifestly unjust, or (3) there is an intervening change in controlling law. School Dist. No. 1J, Multnomah, County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993). With respect to the portion of its ruling that is not moot, the district court did not abuse its discretion in denying Plaintiffs’ motion to alter or amend its judgment. With one exception, the motion repeated legal arguments made earlier and sought to introduce facts that were available earlier in the proceedings. A district court does not abuse its discretion when it disregards legal arguments made for the first time on a motion to amend, see Rosenfeld v. U.S. Dep’t of Justice, 57 F.3d 803, 811 (9th Cir.1995), and a party that fails to introduce facts in a motion or opposition cannot introduce them later in a motion to amend by claiming that they constitute “newly discovered evidence” unless they were previously unavailable. See GenCorp, Inc. v. American Int’l Underwriters, 178 F.3d 804, 834 (6th Cir.1999). The only new argument in Plaintiffs’ motion to alter or amend the judgment was a contention that it was “manifestly unjust” for the district court to issue. a ruling without first obtaining and reviewing the city’s administrative record. Plain tiffs claim that this evidence (in particular, a videotape of the April 23 hearing) would have demonstrated that the property was not the “open lot” that the district court described, but was instead restricted to people with business to transact. This fact would not, however, alter Plaintiffs’ expectation of privacy. Accordingly, it was not an abuse of discretion for the district court to deny" }, { "docid": "21865015", "title": "", "text": "risks associated with the Monite Site. (Id., ¶¶ 56-66). II. MOTION TO RECONSIDER A. PROCEDURAL BACKGROUND Defendant United States of America filed a Motion to Dismiss pursuant to Fed. R.Civ.P. 12(b)(1) on June 15, 2001. (Docket # 18). (Plaintiff timely filed an Opposition on July 9, 2001), (#20) and (Defendants filed a Reply on July 23, 2001).(# 21). This case was reassigned to the undersigned Judge on January 17, 2002.(# 22). The Court denied the Defendant’s Motion to Dismiss in its Order of July 7, 2002 (Docket # 24). Defendant subsequently filed the present Motion to Reconsider (Docket #28) predicated on the Court using an erroneous legal standard. For the following reasons, the Defendant’s Motion to Reconsider will be denied. B. STANDARD OF REVIEW A motion to reconsider must provide a court with valid grounds for reconsideration by: (1) showing some valid reason why the court should reconsider its prior decision, and (2) setting forth facts or law of a strongly convincing nature to persuade the court to reverse its prior decision. All Hawaii Tours Corp. v. Polynesian Cultural Ctr., 116 F.R.D. 645, 648-49 (D.Haw.1987), rev’d on other grounds, 855 F.2d 860 (1988). “Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” School Dist. No. IJ, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993). C. DISCUSSION Defendant has moved the Court to reconsider Defendant’s Motion to Dismiss on the grounds that the Court applied the incorrect legal standard. Defendant points out that the Court cited a number of cases in its standard of review, which address motions to dismiss under Rule 12(b)(6). The Defendant sought dismissal under Rule 12(b)(1), a motion to dismiss for lack of subject matter jurisdiction. Even under the 12(b)(1) standard, however, it is clear that the Defendant’s Motion would not succeed. Therefore, the Defendant’s Motion to Reconsider will be denied. However, for clarification purposes, the Court will discuss the Rule 12(b)(1) standard and its application to" }, { "docid": "18140466", "title": "", "text": "the instant Motion to Reconsider the Order (the “Motion”)- HSI argues that the Court does not have discretion to decline jurisdiction and that assuming that such discretion exists, the criteria for declining jurisdiction has not been met. HSI also contends that because its claims “involve stevedore operations which are, by definition, maritime activities, the Court has exclusive jurisdiction over the claims asserted in HSI’s Complaint.” Plt.’s Mot. at 6. On February 8, 2005, HT & T filed an Opposition to the Motion. HT & T contends that the Court properly declined jurisdiction under the DJA and that the Court does not have exclusive jurisdiction pursuant to 28 U.S.C. § 1333 (admiralty). According to HT & T, the “savings to suitors” clause allows HSI to' bring its claims in state court. In Reply, filed February 16, 2005, HSI argues that the Court may not abstain because HSI has invoked admiralty jurisdiction and the criteria for declining jurisdiction under the DJA have not been met. The Motion came on for hearing before the Court on February 23, 2005. STANDARD OF REVIEW In the Ninth Circuit a successful motion for reconsideration must accomplish two goals. First it must demonstrate some reason why the court should reconsider its prior decision. Na Mamo O ‘Aha ‘Ino v. Galiher, 60 F.Supp.2d 1058, 1059 (D.Hawai’i 1999) (citation omitted). Second, a motion for reconsideration must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. Id. Courts have established three grounds justifying reconsideration: (1) an intervening change in controlling law; (2) the availability of. new evidence; and (3) the need to correct clear error or prevent manifest injustice. Mustafa v. Clark County Sch. Dist., 157 F.3d 1169, 1178-79 (9th Cir.1998); Great Hawaiian Financial Corp. v. Aiu, 116 F.R.D. 612, 616 (D.Haw.1987), rev’d on other grounds, 863 F.2d 617 (9th Cir.1988). The District of Hawaii has implemented these standards in Local Rule 60.1. Mere disagreement with a previous order is an insufficient basis for reconsideration. See Leong v. Hilton Hotels Corp., 689 F.Supp. 1572 (D.Haw.1988). Furthermore, reconsideration may not be" }, { "docid": "21865016", "title": "", "text": "Corp. v. Polynesian Cultural Ctr., 116 F.R.D. 645, 648-49 (D.Haw.1987), rev’d on other grounds, 855 F.2d 860 (1988). “Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” School Dist. No. IJ, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993). C. DISCUSSION Defendant has moved the Court to reconsider Defendant’s Motion to Dismiss on the grounds that the Court applied the incorrect legal standard. Defendant points out that the Court cited a number of cases in its standard of review, which address motions to dismiss under Rule 12(b)(6). The Defendant sought dismissal under Rule 12(b)(1), a motion to dismiss for lack of subject matter jurisdiction. Even under the 12(b)(1) standard, however, it is clear that the Defendant’s Motion would not succeed. Therefore, the Defendant’s Motion to Reconsider will be denied. However, for clarification purposes, the Court will discuss the Rule 12(b)(1) standard and its application to this case. 1. APPLICABLE LAW FOR 12(b)(1) MOTION TO DISMISS A 12(b)(1) motion can be made in one of two ways. The motion can challenge the sufficiency of the pleadings to support subject matter jurisdiction (a facial challenge), or it can challenge the actual existence of jurisdiction (a factual attack) by way of a “speaking motion.” In the latter case, the judge may consider outside evidence and resolve, factual disputes. Berardinelli v. Castle & Cooke, Inc., 587 F.2d 37, 39 (9th Cir.1978); See also, Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983). (holding that unlike a motion to dismiss for failure to state a claim, under Fed.R.Civ.P. 12(b)(6), a court can hear outside evidence regarding a motion to dismiss for lack of subject matter jurisdiction.). If the 12(b)(1) is a facial challenge, the pleadings are taken as true for the purposes of the motion. See Jetform Corp. v. Unisys Corp., 11 F.Supp.2d 788, 789 (D.Va.1998) (holding that if the challenge is that the complaint fails to state sufficient facts to support subject matter" }, { "docid": "18285464", "title": "", "text": "ORDER KOVACHEVICH, District Judge. This cause is before the Court on Plaintiffs timely motion for rehearing, filed February 19, 1993, and Defendant’s response thereto, filed February 24,1993. The motion is considered pursuant to Rule 59(a)(2) and (e), Fed.R.Civ.P. Plaintiff requests that the Court vacate its order granting summary judgment for the defendant. 812 F.Supp. 1215. In support of the motion, the plaintiff offers only the bare conclusion that this Court misapplied the facts and the law. In All Hawaii Tours, Corp. v. Polynesian Cultural Center, 116 F.R.D. 645 (D.Hawaii 1987), rev’d in part on other grounds, 855 F.2d 860, the court states: A litigant may move the court to reconsider a grant of summary judgment pursuant to Rule 59(e) or Rule 60(b). However, to avoid being frivolous, such a motion must provide valid grounds for reconsideration. See MGIC Indemnity Corp. v. Weisman, 803 F.2d 500, 505 (9th Cir.1986). A motion for reconsideration must do two things. First, it must demonstrate some reason why the court should reconsider its prior decision. Second, it must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. Courts have distilled three major grounds justifying reconsideration: (1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or manifest injustice. Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D.Cal.1986); see also Major v. Benton, 647 F.2d 110, 112 (10th Cir.1981). * * * * * * The main thrust of plaintiffs motion to alter or amend was that this court had made both factual and legal errors and mistakes, and therefore should reverse its decision. In this circuit, a motion for reconsideration may be brought on the basis of judicial mistakes, as well as mistakes of a party or his counsel. Liberty Mutual Insurance Co. v. E.E.O.C., 691 F.2d 438, 441 (9th Cir.1982). However, a motion for reconsideration that presents no arguments that have not already been raised in opposition to summary judgment should be denied. Backlund v. Barnhart, 778 F.2d 1386, 1388" }, { "docid": "19436070", "title": "", "text": "1225(b)(2), and 1226(c), are not entitled to bond hearings at six month intervals. Jennings v. Rodriguez, --- U.S. ----, 138 S.Ct. 830, 836, 200 L.Ed.2d 122 (2018). In her second bond memorandum, the IJ looked to Jennings in concluding that she \"no longer has jurisdiction to conduct custody redetermination hearings for individuals...who are...detained pursuant to INA § 241(a) [ 8 U.S.C. § 1231(a) ].\" ECF No. 20-2 at 6. The IJ reasoned that Rodriguez v. Robbins, 804 F.3d 1060, 1139 (9th Cir. 2015), which provided bond hearings for individuals detained under sections 1225(b)(1), 1225(b)(2), 1226(c), and Diouf, 634 F.3d at 1085, which provides bond hearings for individuals like Liborio Ramos detained under section 1231(a)(6), both applied the canon of constitutional avoidance. Id. Because the Supreme Court reversed Rodriguez\"on the grounds that the Ninth Circuit misapplied the canon of constitutional avoidance,\" the IJ reasoned that Diouf\"too is no longer a reliable source of jurisdiction.\" Id. Contrary to the Government's assertion and the IJ's conclusion, Jennings neither prevents an IJ from conducting a bond hearing for immigrants detained under section 1231(a)(6) nor deprives this Court of jurisdiction to review the constitutionality of that bond determination. First, Jennings affirmed that 8 U.S.C. § 1252(b)(9) is not a jurisdictional bar to this Court hearing habeas cases challenging the denial of bond. Section 1252(b)(9) bars judicial review of final orders of removal. 8 U.S.C. § 1252(b)(9). However, Jennings confirmed that habeas bond petitions are \"not challenging the decision to detain [immigrants] in the first place or to seek removal,\" and accordingly the Court has jurisdiction to review this case. Jennings, 138 S.Ct. at 841. Second, Jennings reversed the Ninth Circuit's holding in Rodriguez that immigrants detained under sections 1225(b)(1), 1225(b)(2), and 1226(c) were entitled to a bond hearing every six months, but left untouched the Ninth Circuit's requirement of such hearings for immigrants detained under section 1231(a)(6). 138 S.Ct. at 836. An immigrant's detention is authorized under two different groups of statutes. First, immigrants who have not yet been ordered removed, and are either seeking asylum, deemed inadmissible, or challenging their removal order are detained" }, { "docid": "46586", "title": "", "text": "the January 8, 1997 order fully complies with our [previous] mandate, that issue may be raised in a later appeal.” Griffey v. United States Dist. Court, No. 96-80414 (9th Cir.March 14, 2003). . We lack jurisdiction to directly review the dismissal of Griffey’s earlier petition for failure to exhaust. The dismissal of Griffey's earlier action on exhaustion grounds was a final, appealable order. See, e.g., James v. Pliler, 269 F.3d 1124, 1125 (9th Cir.2001). Griffey did not appeal that decision within the jurisdictional time limits set by Federal Rule of Appellate Procedure 4. .Rule 59(e) provides that \"[a]ny motion to alter or amend a judgment shall be filed no later than 10 days after entry of judgment.” Fed.R.Civ.P. 59(e). Rule 59(e) amendments are appropriate if the district court: (1) is presented with newly discovered evidence; (2) committed clear error or the initial decision was manifestly unjust; or (3) if there is an intervening change in controlling law. Sch. Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993). Rule 60(b) provides, in relevant part: On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; ... or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for [reason] (1) ... not more than one year after the judgment, order, or proceeding was entered or taken ... Fed.R.Civ.P. 60(b). .See Ford, 330 F.3d at 1100-03 (citing Anthony v. Cambra, 236 F.3d 568, 573-74 (9th Cir.2000)); Anthony, 236 F.3d at 574 (citing Calderon v. United States Dist. Court (Kelly), 163 F.3d 530, 540 (9th Cir.1998)); Kelly, 163 F.3d at 540 (tying the equitable power to back-date filings to Rule 60(b)), abrogated on other grounds by Woodford v. Garceau, 538 U.S. 202, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003); Cf. Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir.1988) (instructing, on direct appeal, how the district court on remand" }, { "docid": "22583702", "title": "", "text": "1252(a)(2)(C). Nunes then sought habeas review of his removal order in federal district court, arguing once again that he is not an aggravated felon. The district court denied the habeas petition for “failure to state a claim,” finding that Nunes’ conviction for first degree burglary constituted an aggravated felony under 8 U.S.C. § 1101(a)(43)(G). The district court also denied Nunes’ motion for reconsideration, holding that Nunes had failed to introduce new evidence, show clear error, or identify a change in controlling law. Nunes now appeals the district court’s denial of his motion for reconsideration. II. The issue before us is whether the district court improperly denied appellant Nunes’ motion for reconsideration of its dismissal of his habeas petition. We have jurisdiction under 28 U.S.C. § 2253 to review all appeals of final orders in habeas corpus proceedings. We review for abuse of discretion the denial of a motion for reconsideration. Parkinson v. Commissioner, 647 F.2d 875, 876 (9th Cir.1981). “Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993), cert. denied, 512 U.S. 1236, 114 S.Ct. 2742, 129 L.Ed.2d 861 (1994). In his motion for reconsideration, Nunes reasserted that his burglary conviction under California Penal Code § 459 does not constitute an aggravated felony under 8 U.S.C. § 1101(a)(43)(G). He also argued for the first time that his state conviction fatally failed to specifically charge' him with having committed an “unlawful entry” in conjunction with the burglary. Therefore, Nunes argues, his conviction does not meet the generic definition of a burglary offense, and thus does not constitute an aggravated felony under 8 U.S.C. § 1101(a)(43)(G). The district court denied the motion, holding that Nunes failed to satisfy any of the factors we identified in ACandS. We agree with this conclusion. Nunes’ motion merely reasserts his original contention that he is not an aggravated felon; it fails to present any new evidence," }, { "docid": "16961587", "title": "", "text": "reconsider the order made by this court on September 1, 1998 on an allegation that the declarations of Randy Reese and G. Patrick Jennings are “fraudulent” indicia of an “executive cabal”. (Def. Brief, p. 20 and p. 20, item (f)) Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the district court. The Rule permits a district court to relieve a party from an order or judgment on grounds of: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party ... or (6) any other reason justifying relief from the operation of the judgment.” Fed.R.Civ.P. 60(b). The motion for reconsideration must be made within a reasonable time, in any event “not more than one year after the judgment, order, or proceeding was entered or taken.” Id. Motions to reconsider are committed to the discretion of the trial court. Combs v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C.Cir.1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir.1983) (en banc). To succeed, a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. See, e.g., Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D.Cal.1986), aff'd in part and rev’d in part on other grounds, 828 F.2d 514 (9th Cir.1987), cert. denied, 486 U.S. 1015, 108 S.Ct. 1752, 100 L.Ed.2d 214 (1988). The Ninth Circuit has stated that “[c]lause 60(b)(6) is residual and ‘must be read as being exclusive of the preceding clauses.’ ” Lafarge Conseils et Etudes, S.A. v. Kaiser Cement, 791 F.2d 1334, 1338 (9th Cir.1986), quoting Corex Corp. v. United States, 638 F.2d 119 (9th Cir.1981). Accordingly, “the clause is reserved for ‘extraordinary circumstances.’” Id. Defendants Bell have alleged fraud. Their legal conclusion that the Assistant United States Attorney and revenue agent assigned to this case are part of an “executive cabal” is insufficient" }, { "docid": "13331269", "title": "", "text": "claim against THE GOLDEN RULE for damages sustained as a result of the negligent operation of the vessel. Am. Compl. ¶¶ 14-17. Together with the Complaint, Craddock filed an Emergency Motion for the Issuance of Warrant of Arrest In Rem (ECF No. 3, 5), asking this Court to order the seizure of THE GOLDEN RULE, as well as an Emergency Motion for Appointment of Substitute Custodian and to Authorize Movement of the Vessel (ECF No. 4), asking this Court to appoint a substitute custodian over the vessel and authorize its transfer to the substitute custodian’s secured facility. The Court denied these motions. Craddock then filed his Emergency Motion for Reconsideration. A few months later, Craddock followed up by filing a Petition for Writ of Mandamus with the United States Court of Appeals for the Eleventh Circuit, seeking an order compelling this Court to issue an arrest warrant against THE GOLDEN RULE. (ECF No. 27.) This Court responded by asking the appeals court to remand the matter for an opportunity to rule on the Emergency Motion for Reconsideration. (ECF No. 28). The Eleventh Circuit granted the request. (ECF No. 31). The Court now takes up Craddock’s Emergency Motion for Reconsideration. II. LEGAL STANDARD The “purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence.” Burger King Corp. v. Ashland Equities, Inc., 181 F.Supp.2d 1366, 1369-70 (S.D.Fla.2002) (quoting Z.K. Marine Inc. v. M/V Archigetis, 808 F.Supp. 1561, 1563 (S.D.Fla.1992)). In particular, there are three major grounds which justify reconsideration: (1) an intervening change in controlling law, (2) the availability of new evidence, and (3) the need to correct clear error or prevent manifest injustice. Id. (citations omitted); see also Arthur v. King, 500 F.3d 1335, 1343 (11th Cir.2007). To reconsider an order or judgment, there must be a reason why the court should reconsider its prior decision, and the moving party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. The decision whether to grant or deny a motion to" }, { "docid": "21241280", "title": "", "text": "account from Plaintiffs credit reports. Instead of complying, Defendant began re-furnishing the same account trade line to Equifax, albeit with an altered account number and using a different subscriber code, and internally continued to accrue interest to the account. On or about August 20, 2005, Plaintiff discovered Defendant was still reporting the account, albeit with an altered account number and date. It was being reported to June, 2004 with an account balance of $301.00 over 120 days past due. At trial, Defendant argued that Equifax was responsible for the reporting. However, the jury credited the testimony of Equifax over that of Defendant, apparently finding that Defendant had inappropriately reported the new account number and information to Equifax. No one has ever disputed the fact that the account was reported in error. Plaintiff spent five years and two trials against Defendant attempting to rectify the situation, and testified extensively at trial regarding the emotional distress Defendant’s continuing course of action caused her. III. JUDICIAL STANDARD A. Rule 59(e) Motion to Alter or Amend Judgment District courts have the power to “alter or amend” a judgment by motion under Rule 59(e). Fed.R.Civ.P. 59(e). Rule 59(e) provides an efficient mechanism by which the trial court can correct otherwise erroneous judgment without implicating the appellate process. Clipper Exxpress v. Rocky Mt. Motor Traffic Bureau, 674 F.2d 1252 (9th Cir.1982). Any motion which enables the trial judge to reconsider the validity of the judgment and vacate or alter as he sees fit is valid. Id. Generally, the grounds for a motion under Federal Rule of Civil Procedure 59(e) are: (1) newly discovered evidence; (2) commission of clear error by the district court; or (3) an intervening change in the governing law. School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993). A trial court properly acts within its discretion in denying a Rule 59(e) motion where the verdict is not manifest error of law. Turner v. Burlington Northern Santa Fe R.R., 338 F.3d 1058 (9th Cir.2003). A party may not present arguments or evidence for the first time in" }, { "docid": "46585", "title": "", "text": "error.” See People v. Osband, 13 Cal.4th 622, 728, 55 Cal.Rptr.2d 26, 919 P.2d 640 (1996) (quoting Coleman, 48 Cal.3d at 166, 255 Cal.Rptr. 813, 768 P.2d 32). Because Griffey has not shown prejudice, this claim does not entitle Griffey to habeas relief. 6 We have closely considered Griffey’s other ineffective assistance of trial counsel arguments and conclude that they all lack merit because the actions of Griffey’s counsel’s either fell within the range of reasonably competent defense counsel or there has been no showing of prejudice. 7 We must also evaluate the cumulative impact of Griffey’s asserted trial errors. We see no prejudice. Even if some prejudice could be found on these facts, we cannot say the California courts’ rejection of Griffey’s claims was “contrary to” or an “unreasonable application” of clearly established federal law. We affirm the district court’s denial of relief for Griffey’s ineffective assistance of counsel claims. V None of the issues raised by Griffey invalidate the district court’s decision denying Griffey’s habeas petition. We AFFIRM. . \"While petitioner disputes whether the January 8, 1997 order fully complies with our [previous] mandate, that issue may be raised in a later appeal.” Griffey v. United States Dist. Court, No. 96-80414 (9th Cir.March 14, 2003). . We lack jurisdiction to directly review the dismissal of Griffey’s earlier petition for failure to exhaust. The dismissal of Griffey's earlier action on exhaustion grounds was a final, appealable order. See, e.g., James v. Pliler, 269 F.3d 1124, 1125 (9th Cir.2001). Griffey did not appeal that decision within the jurisdictional time limits set by Federal Rule of Appellate Procedure 4. .Rule 59(e) provides that \"[a]ny motion to alter or amend a judgment shall be filed no later than 10 days after entry of judgment.” Fed.R.Civ.P. 59(e). Rule 59(e) amendments are appropriate if the district court: (1) is presented with newly discovered evidence; (2) committed clear error or the initial decision was manifestly unjust; or (3) if there is an intervening change in controlling law. Sch. Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993). Rule 60(b) provides," }, { "docid": "2597469", "title": "", "text": "Rule 7-9(a) in light of the developing ease authority in this rapidly changing area of the law. DISCUSSION 1. Standard for Reconsideration Reconsideration should be granted only where there has been an intervening change of law or fact, new evidence or authority not previously available in the exercise of reasonable diligence has been discovered, or reconsideration is necessary to correct a clear error of law or a manifest injustice. School Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993) cert. denied, 512 U.S. 1236, 114 S.Ct. 2742, 129 L.Ed.2d 861 (1994); Civil L.R. 7-9(b). As this Court noted in its order of March 11, 1996 granting leave to move for reconsideration, several new cases on school district liability under Title .IX for student-on-student harassment have been decided since this Court’s order of August 30, 1993. In addition, there is new authority in related areas of discrimination law, including Title VII law, which are informative here. As the Ninth Circuit explicitly recognized in 1991, “sexual harassment is a rapidly expanding area of the law.” Ellison v. Brady, 924 F.2d 872 (9th Cir.1991). This remains as true today as it was five years ago. Defendants argue that this Court should refrain from reconsidering its prior decision under the doctrine of the law of the ease. However, as Defendants recognize, “law of the ease” refers only to the practice of courts not to reopen a decided issue except for a cogent reason, and does not circumscribe a court’s authority to reconsider an interlocutory ruling when good cause exists to do so. Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912). Good cause exists here to reexamine the issues raised in this ease. 2. Intentional Discrimination At issue in this motion is the standard of liability for damages under Title IX applicable to a federally funded school district when a sexually harassing hostile environment in a school allegedly harms a student. The availability of the remedy of money damages for violation of Title IX is based on the Supreme Court’s decision in Franklin" } ]

[ { "docid": "15425183", "title": "", "text": "claims, and resulted in a general lack of uniformity in bid protest law. Some urged that “[providing district courts with jurisdiction to hear bid protest claims has led to forum shopping and fragmentation of Government contract law” and that “[c]on-solidation of jurisdiction in the Court of Federal Claims is necessary to develop a uniform national law on bid protest issues and end the wasteful practice of shopping for the most hospitable forum.” 142 Cong. Rec. S6156 (daily ed. June 12, 1996) (statement of Sen. Cohen). IV In 1996, Congress passed the ADRA, thereby clarifying the Court of Federal Claims’ bid protest jurisdiction. See Administrative Dispute Resolution Act of 1996, Pub.L. No. 104-320, § 12, 110 Stat. 3870, 3874-76. The ADRA provides that the Court of Federal Claims and district courts shall have concurrent jurisdiction over bid protest actions, and that the courts “shall review the agency’s decision pursuant to the standards set forth in section 706 of title 5” of the APA. 28 U.S.C. § 1491(b)(1), (4). Pursuant to the ADRA, the district courts’ jurisdiction over bid protests was to terminate on January 1, 2001, unless extended by Congress, and the Court of Federal Claims was to have exclusive jurisdiction over bid protest actions. See ADRA § 12(d). The legislative history of the ADRA confirms what is obvious on the face of the statute — that the new legislation “applies the Administrative Procedure Act standard of review previously applied by the district courts (5 U.S.C. § 706) to all procurement protest cases in the Court of Federal Claims.” H.R. Conf. Rep. No. 104-841, at 10 (1996). Under the ADRA, all bid protest actions under the APA are now reviewed under the standards applied in the Scanwell line of cases. See Ramcor Services Group, Inc. v. United States, 185 F.3d 1286, 1290 (Fed.Cir.1999) (stating that “[t]he ADRA explicitly imports the APA standards of review into the Court of Federal Claims’ review of agency decisions.”). Under the APA standards that are applied in the Scanwell line of cases, a bid award may be set aside if either; (1) the procurement official’s decision" } ]

[ { "docid": "4571082", "title": "", "text": "that requirement, too, has been satisfied. This protest also meets the ripeness requirements set forth by the Federal Circuit for challenges to corrective action. See id. at 1383-84. The Administrative Dispute Resolution Act of 1996, Pub.L. No. 104-320, § 12, 110 Stat. 3870 (codified at 28 U.S.C. § 1491(b)) (the “ADRA”), amended the Tucker Act, 28 U.S.C. § 1491(b)(1), granting the Court of Federal Claims jurisdiction over bid protests. See Res. Conservation Grp., LLC v. United States, 597 F.3d 1238, 1243 (Fed. Cir.2010); Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324,1330-32 (Fed.Cir.2001) (“Domenico Garufi”). The ADRA’s standard of review for agency procurement decisions adopted the standard of review set forth in the Administrative Procedure Act, 5 U.S.C. § 706 (2006) (the “APA”). See 28 U.S.C. § 1491(b)(4). The court has authority under the APA to set aside only an agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also PGBA, LLC v. United States, 389 F.3d 1219, 1224-28 (Fed. Cir.2004) (clarifying that ADRA incorporates arbitrary and capricious standard of APA to review procurement decisions); see also Domenico Garufi, 238 F.3d at 1332-33 (making applicable the standards applied in Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C.Cir.1970), and its progeny to bid protests). Accordingly, as restated by the Federal Circuit, “[a] bid protest proceeds in two steps.” Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed.Cir.2005). First, the court determines if, under the arbitrary and capricious standard, the agency acted either (1) without rational basis, or (2) contrary to law. Id.; see Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed.Cir.2004); Domenico Garufi, 238 F.3d at 1333; Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed.Cir.1996). Second, if the court finds that the agency acted in violation of the APA standard, “then it proceeds to determine, as a factual matter, if the bid protester was prejudiced by that conduct.” Bannum, 404 F.3d at 1351. In either case the plaintiff bears the “heavy burden” of proving this lack of rational" }, { "docid": "19366908", "title": "", "text": "A. Standard for Judgment on the Administrative Recard Unlike a motion for summary judgment, the Court reviews motions for judgment on the administrative record to determine whether, given all the disputed and undisputed facts, a party has met its burden of proof based on the evidence in the record. Bannum, Inc. v. United States, 404 F.3d 1346, 1355-56 (Fed.Cir.2005). This Court previously has likened resolutions of cross-motions for judgment on the administrative record “to an expedited trial on the paper record.” A & D Fire Prot., Inc. v. United States, 72 Fed.Cl. 126, 131 (2006) (citing Bannum, Inc., 404 F.3d at 1356); see also Kerr Contractors, Inc. v. United States, 89 Fed.Cl. 312, 318 (2009), aff'd 2010 WL 1838867 *1 (Fed.Cir. May 7, 2010); Williams v. United States, 91 Fed.Cl. 560, 567 (2010). The Court will make findings of fact where neces sary to determine whether “a protester has met its burden of proof that an award is arbitrary, capricious ... or violates to prejudicial effect an applicable procurement regulation.” Tech. Sys., Inc. v. United States, 50 Fed.Cl. 216, 222 (2001). In this case, the relevant facts are not in dispute. B. Standard ofRevieiu in Bid. Protests This Court reviews an agency’s action pursuant to the standards set forth in the Administrative Procedure Act (“APA”). 5 U.S.C. § 706. The APA provides that this Court shall set aside an agency’s decision if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (incorporated by reference in 28 U.S.C. § 1491(b)(4)); Ban-num, Inc., 404 F.3d at 1351. Under this standard, a procurement decision may be set aside if it lacked a rational basis or if the agency’s decision-making involved a violation of regulation or procedure. DMS All-Star Joint Venture v. United States, 90 Fed.Cl. 653, 661 (2010) (citing Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed.Cir.2001)). Where, as in this case, a challenge is brought under the first ground, the Court must consider whether “the contracting agency provided a coherent and reasonable explanation of its exercise of" }, { "docid": "20278274", "title": "", "text": "connection with a procurement or a proposed procurement,” 28 U.S.C. § 1491(b)(1) (2006), and may “award any relief that the court considers proper, including declaratory and injunctive relief except that any monetary relief shall be limited to bid preparation and proposal costs,” id. § 1491(b)(2). Interested parties are those “prospective bidders or offerors whose direct economic interest would be affected by the award of the contract or by failure to award the contract.” Am. Fed’n of Gov’t Employees, AFL-CIO v. United States, 258 F.3d 1294, 1302 (Fed.Cir.2001) (citing 31 U.S.C. § 3551(2)(A)). The Administrative Dispute Resolution Act of 1996 (“ADRA”), Pub.L. No. 104-320, § 12, 110 Stat. 3870, 3874-76, expanded the bid protest jurisdiction of the Court of Federal Claims. Pursuant to the ADRA, the Court of Federal Claims reviews the legality of an agency’s decision in accordance with the standards set forth in the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706 (2006). 28 U.S.C. § 1491(b)(4). Athough the APA contains several standards, “the proper standard to be applied in bid protest cases is provided by 5 U.S.C. § 706(2)(A): a reviewing court shall set aside the agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1350 (Fed.Cir.2004). Athough “it is well-settled that procurement officials are entitled to broad discretion in the ... application of procurement regulations,” Metcalf Constr. Co. v. United States, 53 Fed.Cl. 617, 622 (2002), the court may set aside a procuring agency’s contract “if either: (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure,” Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed.Cir.2001). The protester must show, by a preponderance of the evidence, that either ground justifies a set aside of the contract award. AmerisourceBergen Drag Corp. v. United States, 60 Fed.Cl. 30, 35 (2004); see also Gulf Group Inc. v. United States, 61 Fed.Cl. 338, 351 (2004) (articulating the preponderance of the evidence standard). Where “the challenge is" }, { "docid": "19300793", "title": "", "text": "stating that: (1) it “intends to award a contract and not a BP A;” (2) “the name of the potential awardee cannot be released at this time;” and (3) “no explanation [is] needed, for we will award a new contract, not a BPA.” (Pl.’s TRO Mem. 155.) The Air Force announced a “competitive 8(a) set-aside” award to General Trades & Services on June 17, 2010. AR 994. On June 28, 2010, DGR filed its suit in this Court. Bid Protest Jurisdiction and Applicable Standards of Review The Court of Federal Claims has jurisdiction to review pre-award and post-award bid protests pursuant to the Tucker Act, 28 U.S.C. § 1491(b)(1)(2006), as amended by the Administrative Dispute Resolution Act of 1996, Pub.L. No. 104-320, § 12(a)-(b)(1996). The Court reviews bid protests under the standards set forth in the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. See 28 U.S.C. § 1491(b)(4); NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed.Cir.2004). The APA provides that an agency’s decision is to be set aside only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Banknote Corp, of America, Inc. v. United States, 365 F.3d 1345, 1350 (Fed.Cir.2004); Tech. Sys., Inc. v. United States, 50 Fed.Cl. 216, 222 (2001). Therefore, “a bid award may be set aside if either (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.” Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed.Cir.2001). DGR’s bid protest is based upon an alleged violation of law. When challenging a procurement on this ground, “the disappointed bidder must show a clear and prejudicial violation of applicable statutes or regulations.” Impresa, 238 F.3d at 1333. In pre-award protests, the protester can establish prejudice by showing “a non-trivial competitive injury which can be redressed by judicial relief.” Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1361 (Fed.Cir.2009) (quoting WinStar Commc’ns, Inc. v. United States, 41 Fed.Cl. 748, 763 (1998)). In post-award protests, the protester must establish" }, { "docid": "19065498", "title": "", "text": "as part of the RFP’s ‘total evaluated price’ but items that are not included in the sample LOGREQ will only be evaluated to determine whether they are offered at a fair and reasonable price.” AR Tab 38.04, at 17623-24; AR Tab 30, at 11639. II. Legal Standards A Bid Protest Standard of Review The Tucker Act, as amended by the Administrative Dispute Resolution Act (ADRA), 28 U.S.C. § 1491(b)(1) (2006), confers jurisdiction on this court: to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement. 28 U.S.C. § 1491(b)(1). The court may “entertain such an action without regard to whether suit is instituted before or after the contract is awarded.” Id. “A bid protest proceeds in two steps.” Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed.Cir.2005). The first step is to demonstrate error, that is, to show that the agency acted in an arbitrary and capricious manner, without a rational basis or contrary to law. Id. The second step is to determine whether the error was prejudicial. Id. 1. The Plaintiff Must Establish Error The court reviews a bid protest action under the standards set out in the Administrative Procedure Act (APA), 5 U.S.C. § 706. 28 U.S.C. § 1491(b)(4); NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed.Cir.2004). The APA provides that an agency’s decision is to be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see Bannum, 404 F.3d at 1351; Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1329 (Fed.Cir.2004); Impresa Construzioni Geom. Domenico Garufi v. United States (Impresa), 238 F.3d 1324, 1332 (Fed.Cir.2001); Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057 (Fed.Cir.2000). Under the arbitrary or capricious standard oí review, an agency’s decision must be sustained if it has" }, { "docid": "20472754", "title": "", "text": "to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement. 28 U.S.C. § 1491(b)(1). The court reviews a bid protest action under the standards set out in the Administrative Procedure Act (APA), 5 U.S.C. § 706. 28 U.S.C. § 1491(b)(4); NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed.Cir.2004). The APA provides that an agency’s decision is to be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also Bannum, Inc. v. United States (Bannum), 404 F.3d 1346, 1351 (Fed.Cir.2005); Galen Med. Assocs., Inc. v. United States (Galen), 369 F.3d 1324, 1329 (Fed.Cir.2004); Impresa Construzioni Geom. Domenico Garufi v. United States (Impresa), 238 F.3d 1324, 1332 (Fed.Cir.2001); Advanced Data Concepts, Inc. v. United States (Advanced Data Concepts), 216 F.3d 1054, 1057 (Fed.Cir.2000). Under the arbitrary or capricious standai’d of review, an agency’s decision must be sustained if it has a rational basis. Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co. (State Farm), 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). “The arbitrary and capricious standard applicable here is highly deferential. This standard requires a reviewing court to sustain an agency action evincing rational reasoning and consideration of relevant factors.” Advanced Data Concepts, 216 F.3d at 1058 (citing Bowman Transp., Inc. v. Ark-Best Freight Sys., Inc. (Bowman), 419 U.S. 281, 285, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974)). In particular, the reviewing court may not substitute its judgment for that of the agency. State Farm, 463 U.S. at 43, 103 S.Ct. 2856. Under the APA standard of review, as applied in Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C.Cir.1970), and now under the ADRA, “a bid award may be set aside if either: (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of" }, { "docid": "7890392", "title": "", "text": "proposed procurement.” See 28 U.S.C. § 1491(b)(1). To afford relief in bid protest cases, the Court “may award any relief that [it] considers proper, including declaratory and injunctive relief except that any monetary relief shall be limited to bid preparation and proposal costs.” 28 U.S.C. § 1491(b)(2). In reviewing motions under Rule 52.1, the Court must make findings of fact and determine “whether, given all the disputed and undisputed facts, a party has met its burden of proof based on the evidence in the record.” A & D Fire Protection, Inc. v. United States, 72 Fed.Cl. 126, 131 (2006) (citing Bannum, Inc. v. United States, 404 F.3d 1346, 1356 (Fed.Cir.2005)). The resolution of cross-motions for judgment under Rule 52.1 is akin to an expedited trial on “the paper record.” Id. The Court reviews challenges to agency actions in a bid protest according to the standards set forth in the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (“APA”). Under this standard, a reviewing Court shall set aside agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (incorporated by reference in 28 U.S.C. § 1491(b)(4)); see also Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1350-51 (Fed.Cir.2004). Accordingly, in order for the Court to enjoin SAD’s solicitation, Weeks must first show either that the decision constitutes a clear violation of applicable statutes or regulations, or that SAD failed to provide a coherent and reasonable explanation of its exercise of discretion. See Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332-33 (Fed. Cir.2001) (internal citations omitted). If Weeks meets its initial burden, it then must show that it will suffer prejudice as a result of the proposed solicitation. Bannum, 404 F.3d at 1353; but see WinStar Comm., Inc. v. United States, 41 Fed.Cl. 748, 763 n. 9 (1998) (“[t]he prejudice requirement applicable in post-award protests cannot be applied in solicitation protests.”). B. SAD’s IDIQ Solicitation Violates Applicable Law. It is true that a procuring agency has wide latitude to determine the most suitable procurement method," }, { "docid": "16335563", "title": "", "text": "Subsequently, on December 23, 2005, plaintiff filed a motion for additional supplementation of the administrative record, which defendant and Hornblower opposed. This motion was granted in part and denied in part, as discussed more fully in section 1.2 below. FACTS and DISCUSSION I. Standard of review 1. Standard of review in bid protest actions The Tucker Act, 28 U.S.C. § 1491(b)(1) (2000), as amended by the Administrative Disputes Resolution Act of 1996 (the “ADRA”), Pub.L. No. 104-320, § 12(a), 110 Stat. 3870, 3874-75 (codified at 28 U.S.C. § 1491(b)), provides the United States Court of Federal Claims with jurisdiction over actions brought by a disappointed proposer in a government procurement. When evaluating agency action, the Act directs the court to use the standard of review set forth in section 706 of title 5, i.e., the Administrative Procedure Act, 28 U.S.C. § 1491(b)(4) (2000) (the “APA”); Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1350 (Fed.Cir.2004). The APA confers discretion to set aside agency action only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law[.]” 5 U.S.C. § 706(2)(A); see PGBA LLC v. United States, 389 F.3d 1219, 1224-28 (Fed.Cir.2004) (holding that ADRA, in incorporating arbitrary and capricious standard of APA, did not alter court’s equitable discretion in granting injunctive relief). As restated recently by the United States Court of Appeals for the Federal Circuit, “A bid protest proceeds in two steps.” Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed.Cir.2005). First, the court determines if, under the arbitrary and capricious standard, the agency acted either (1) without rational basis, or (2) contrary to law. Bannum, 404 F.3d at 1351; see Banknote Corp., 365 F.3d at 1351; Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1333 (Fed.Cir.2001); Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed.Cir.1996); Aeroplate Corp. v. United States, 67 Fed.Cl. 4, 8 (2005). Second, if the court finds that the agency acted in violation of the APA standard, “then it proceeds to determine, as a factual matter, if the bid protester was prejudiced by" }, { "docid": "7890088", "title": "", "text": "to supplement the Administrative Record with various post-decision documents not considered by the agency in awarding to Gerber. II. Discussion A. Jurisdiction and Standard of Review This Court has jurisdiction over pre-award and post-award bid protests “in connection with a procurement or proposed procurement” pursuant to 28 U.S.C. § 1491(b)(1), as amended by the Administrative Dispute Resolution Act of 1996. Pub.L. No. 104-320, § 12(a)-(b)(1996). The Court reviews challenges to agency actions in a bid protest according to the standards set forth in the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706. When evaluating agency action, a reviewing Court may only set aside agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (incorporated by reference in 28 U.S.C. § 1491(b)(4)); Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1350-51 (Fed.Cir.2004). Still, the agency must present a full and reasoned explanation for its decision, to enable courts to perform a meaningful review. In re Sang-Su Lee, 277 F.3d 1338, 1342 (Fed.Cir.2002); see also ViroMed Labs., Inc. v. United States, 62 Fed.Cl. 206, 212 (2004) (“[T]he court should review the basis for the agency decision to see if was legally permissible, reasonable, and supported by the facts.”). “Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one.” Overton Park, 401 U.S. at 416, 91 S.Ct. 814; see also Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962) (finding the agency must articulate a “rational connection between the facts found and the choice made”). Under the APA, the protestor may challenge an agency’s action on one of two grounds: (1) the procurement official’s decision lacked a rational basis, or (2) the procurement method or procedure constituted a violation of law or regulation. Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed.Cir.2001); see Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed.Cir.2005). When a challenge is brought on the first ground, the test is whether" }, { "docid": "20483147", "title": "", "text": "an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also PGBA, LLC v. United States, 389 F.3d 1219, 1224-28 (Fed.Cir.2004) (clarifying that ADRA incorporates arbitrary and capricious standard of APA to review procurement decisions); see also Domenico Garufi, 238 F.3d at 1332-33 (making applicable the standards applied in Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C.Cir.1970), and its progeny to bid protests). Accordingly, as restated by the Federal Circuit, “[a] bid protest proceeds in two steps.” Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed.Cir.2005). First, the court determines if, under the arbitrary and capricious standard, the agency acted either (1) without rational basis, or (2) contrary to law . Id.; see Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed.Cir.2004); Domenico Garufi, 238 F.3d at 1333; Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed.Cir.1996); Aeroplate Corp. v. United States, 67 Fed.Cl. 4, 8 (2005). Second, if the court finds that the agency acted in violation of the APA standard, “then it proceeds to determine, as a factual matter, if the bid protester was prejudiced by that conduct.” Bannum, 404 F.3d at 1351. In either case the plaintiff bears the “heavy burden” of proving this lack- of rational basis or violation of the law by a preponderance of the evidence. Domenico Garufi, 238 F.3d at 1333. If the agency action is determined either to violate an applicable procurement regulation, the court proceeds to address whether the action was significantly prejudicial to the protester. See Bannum, 404 F.3d at 1351, 1353; see also Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed.Cir.2009) (“When a challenge is brought on the second ground [of the Bannum test], the disappointed bidder must show a clear and prejudicial violation of applicable statutes or regulations.”). Even if a plaintiff can show that a procurement violation occurred, “[t]he prejudice determination assesses whether an adjudged violation of law warrants setting aside of a contract award.” Bannum, 404 F.3d at 1357. When making this evaluation, the court must be mindful that “[prejudice" }, { "docid": "19366909", "title": "", "text": "States, 50 Fed.Cl. 216, 222 (2001). In this case, the relevant facts are not in dispute. B. Standard ofRevieiu in Bid. Protests This Court reviews an agency’s action pursuant to the standards set forth in the Administrative Procedure Act (“APA”). 5 U.S.C. § 706. The APA provides that this Court shall set aside an agency’s decision if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (incorporated by reference in 28 U.S.C. § 1491(b)(4)); Ban-num, Inc., 404 F.3d at 1351. Under this standard, a procurement decision may be set aside if it lacked a rational basis or if the agency’s decision-making involved a violation of regulation or procedure. DMS All-Star Joint Venture v. United States, 90 Fed.Cl. 653, 661 (2010) (citing Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed.Cir.2001)). Where, as in this case, a challenge is brought under the first ground, the Court must consider whether “the contracting agency provided a coherent and reasonable explanation of its exercise of discretion.” Career Training Concepts, Inc. v. United States, 83 Fed.Cl. 215, 221 (2008); see also Banknote Corp. of Amer., Inc. v. United States, 365 F.3d 1345, 1351 (Fed.Cir.2004). The plaintiff bears a heavy burden of demonstrating that the award decision lacked a rational basis. Impresa, 238 F.3d at 1332-33. This standard of review is highly deferential, Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057-58 (Fed. Cir.2000), and entitles the agency’s decision to a “presumption of regularity.” Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1085 (Fed.Cir.2001) (internal citation omitted). If the agency’s decision was reasonable, the Court may not substitute its own judgment, even if it may have “interpreted and applied the procurement regulations in a different fashion had the court been in the agency’s position.” Holloway & Co. v. United States, 87 Fed.Cl. 381, 389 (2009). Therefore, the Court must perform a careful review of the agency’s decision to ensure that it had a rational basis or did not involve a violation of regulation or procedure. CHE Consulting, Inc." }, { "docid": "20484012", "title": "", "text": "undisputed facts, a party has met its burden of proof based on the evidence in the record.” DMS All-Star Joint Venture v. United States, 90 Fed.Cl. 653, 661 (2010) (citing Bannum, 404 F.3d at 1356-57). “The existence of a question of fact thus neither precludes the granting of a motion for judgment on the administrative record nor requires this court to conduct a full blown evidentiary proceeding.” CRAssociates, Inc. v. United States, 102 Fed.Cl. 698, 710 (2011) (citing, inter alia, Bannum, 404 F.3d at 1356). “The standards and criteria governing the court’s review of agency decisions vary depending upon the specific law to be applied in particular cases.” RCFC 52.1 Rules Committee Note (2006). Here, the standards of review and burdens of proof and persuasion are set by the Administrative Procedure Act (APA) as interpreted and applied in binding precedent. See 28 U.S.C. § 1491(b)(4); infra Part II.C. C. Standard of Review The court reviews a bid protest action under the standards set forth in the APA at 5 U.S.C. § 706. 28 U.S.C. § 1491(b)(4); NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed.Cir.2004). The APA provides that an agency’s decision shall be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1329 (Fed.Cir.2004). In other words, “a bid award may be set aside if either: (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.” Impresa Construzioni Geom. Domenico Garufi v. United States (Impresa), 238 F.3d 1324, 1332 (Fed.Cir.2001). “[T]his standard recognizes the possi bility of a zone of acceptable results in a particular case and requires only that the final decision reached by an agency be the result of a process which ‘eonsider[s] the relevant factors’ and is “within the bounds of reasoned decisionmaking.’ ” CRAssociates, 102 Fed.Cl. at 710 (second brackets in original) (quoting Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87," }, { "docid": "22000574", "title": "", "text": "Record, pursuant to RCFC 52.1, is similar but not identical to a Motion for Summary Judgment, pursuant to RCFC 56.” Info. Scis. Corp. v. United States, 73 Fed.Cl. 70, 97-98 (2006) (citing Bannum, Inc. v. United States, 404 F.3d 1346, 1355 (Fed.Cir.2005)). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See RCFC 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Jay v. Sec’y, DHHS, 998 F.2d 979, 982 (Fed.Cir.1993). In contrast, under Rule 52.1, the court must weigh the evidence when considering a Motion for Judgment on the Administrative Record. See Bannum, 404 F.3d at 1355-56. RCFC 52.1 is “designed to provide for a trial on a paper record, allowing fact-finding by the trial court.” Id. at 1356. This Court reviews bid protest actions under the standards of the Administrative Procedure Act (“APA”). See 28 U.S.C. § 1491(b)(l)-(4) (2008). The Court of Federal Claims has explained that “[ajgency procurement actions should be set aside when they are ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’ or “without observance of procedure required by law.’ ” KSD, Inc. v. United States, 72 Fed.Cl. 236, 250 (2006) (citing 5 U.S.C. § 706(2)(A), (2)(D) (2000); Bannum, 404 F.3d at 1351). In determining whether defendant has acted arbitrarily and capriciously, the court must consider four factors: whether (1) there was subjective bad faith on the part of the procuring officials depriving the protestor of fair and honest consideration of its proposal; (2) there was a reasonable basis for the procuring officer’s decision; (3) the procuring officials abused their discretion; and (4) the procuring officials violated pertinent statutes or regulations. See Cin-com Sys., Inc. v. United States, 37 Fed.Cl. 663, 671 (1997) (citing Keco Indus., Inc. v. United States, 203 Ct.Cl. 566, 492 F.2d 1200, 1203-04 (1974)). B. Jurisdiction The Tucker Act, as modified by the Administrative Dispute Resolution Act of 1996 (“ADRA”), Pub.L. No. 104-320, 110 Stat. 3870 (1996), grants this Court jurisdiction" }, { "docid": "4571081", "title": "", "text": "action and whether the corrective action was reasonable.” Id. at 12. The court scheduled expedited briefing on cross-motions, with plaintiffs motion filed on August 31, 2012. Both defendant and inter-venor filed cross-motions and oppositions to plaintiffs motion on September 21, 2012. Briefing was completed on October 5, 2012. Argument was held on October 10, 2012. DISCUSSION I. Jurisdiction and standard of review in bid protest actions The United States Court of Appeals for the Federal Circuit “has made clear that bid protest jurisdiction arises when an agency decides to take corrective action.” Sys. Application & Techs., Inc. v. United States, 691 F.3d 1374, 1381 (Fed.Cir.2012) (citing Turner Constr. Co. v. United States, 645 F.3d 1377 (Fed.Cir.2011)). The corrective action challenged is the Air Force’s cancellation of the LAS contract award to SNC and resolicition of proposals pursuant to Amendment 0008. Consequently, this action falls within the Court of Federal Claims’ bid protest jurisdiction. 28 U.S.C. § 1491(b)(1) (2006). Plaintiff has standing under the rationale explicated in Systems Application & Technologies, 691 F.3d at 1382-83, and that requirement, too, has been satisfied. This protest also meets the ripeness requirements set forth by the Federal Circuit for challenges to corrective action. See id. at 1383-84. The Administrative Dispute Resolution Act of 1996, Pub.L. No. 104-320, § 12, 110 Stat. 3870 (codified at 28 U.S.C. § 1491(b)) (the “ADRA”), amended the Tucker Act, 28 U.S.C. § 1491(b)(1), granting the Court of Federal Claims jurisdiction over bid protests. See Res. Conservation Grp., LLC v. United States, 597 F.3d 1238, 1243 (Fed. Cir.2010); Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324,1330-32 (Fed.Cir.2001) (“Domenico Garufi”). The ADRA’s standard of review for agency procurement decisions adopted the standard of review set forth in the Administrative Procedure Act, 5 U.S.C. § 706 (2006) (the “APA”). See 28 U.S.C. § 1491(b)(4). The court has authority under the APA to set aside only an agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also PGBA, LLC v. United States, 389 F.3d 1219, 1224-28 (Fed." }, { "docid": "19297615", "title": "", "text": "Fed.Cl. 277, 286 (2006) (citing Bannum, Inc., 404 F.3d at 1356). Instead, in ruling on a motion under RCFC 52.1, the court will make “factual findings ... from the record evidence as if it were conducting a trial on the record.” Bannum, Inc., 404 F.3d at 1357. III. Standards of Review: Bid Protest Actions The Court of Federal Claims has jurisdiction to adjudicate bid protest claims pursuant to the Tucker Act, 28 U.S.C. § 1491(b), which provides this court with jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement[,] ... without regard to whether suit is instituted before or after the contract is awarded. 28 U.S.C. § 1491(b)(1); see also, e.g., Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1330 (Fed.Cir.2001). The Tucker Act further provides that, “[i]n any action under this subsection [28 U.S.C. § 1491(b) ], the courts shall review the agency’s decision pursuant to the standards set forth in [the APA,] section 706 of title 5.” 28 U.S.C. § 1491(b)(4). In particular, the United States Court of Appeals for the Federal Circuit has held that “the proper standard to be applied in bid protest cases is provided by 5 U.S.C. § 706(2)(A): a reviewing court shall set aside the agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1350-51 (Fed.Cir.2004) (quoting 5 U.S.C. § 706(2)(A); citing Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057-58 (Fed.Cir.2000)); see also Int’l Res. Recovery, Inc. v. United States, 60 Fed.Cl. 428, 431 (2004) (“ While a disappointed bidder does not have the right to have a federal court substitute its judgment for that of the administrative agency, the bidder does have the right to introduce appropriate evidence to allow" }, { "docid": "20492742", "title": "", "text": "Accordingly, the court may address the merits of plaintiffs protest. B. The Challenged Request for Quotations Does Not Exceed the Scope of the Underlying Contracts As noted above, the parties have cross-moved for judgment on the administrative record pursuant to Rule 52.1 of the Rules of the United States Court of Federal Claims (“RCFC”). In ruling on such motions, “the court asks whether, given all the disputed and undisputed facts, a party has met its burden of proof based on the evidence in the record.” A & D Fire Prot., Inc. v. United States, 72 Fed.Cl. 126, 131 (2006) (citing Banmum, Inc. v. United States, 404 F.3d 1346, 1356 (Fed.Cir.2005) ). Because the court makes “factual findings ... from the record evidence,” judgment on the administrative record “is properly understood as intending to provide for an expedited trial on the administrative record.” Bannum, Inc., 404 F.3d at 1356. In bid protests, the Court of Federal Claims reviews the challenged agency action pursuant to the standards set forth in 5 U.S.C. § 706. 28 U.S.C. § 1491(b)(4). Although section 706 contains several standards, “the proper standard to be applied in bid pi’otest cases is provided by 5 U.S.C. § 706(2)(A): a reviewing court shall set aside the agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1350 (Fed.Cir.2004). Under this standard, the court “may set aside a procurement action if ‘(1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.’” Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed.Cir.2009) (quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed.Cir.2001)). Here, plaintiff claims that the DSCP violated law and regulation by issuing an RFQ that was beyond the scope of the underlying contracts. To prevail on its claims, plaintiff must show that the violation was “clear and prejudicial.” Impresa Construzioni Geom. Domenico Garufi, 238 F.3d at 1333 (internal quotation marks omitted). To determine whether an" }, { "docid": "20483146", "title": "", "text": "that, while the MCSC has taken corrective action, that action has not mooted plaintiffs protest because it amounts to only a partial termination of the allegedly illegal contract award. A live controversy is at issue, the resolution of which will address the injury claimed by plaintiff. II. Standard of review in bid protest actions The Administrative Dispute Resolution Act of 1996, Pub.L. No. 104-320, § 12, 110 Stat. 3870, 3874 (codified at 28 U.S.C. § 1491(b)) (the “ADRA”), amended the Tucker Act, 28 U.S.C. § 1491(b)(1), granting the Court of Federal Claims jurisdiction over bid protests. See Res. Conservation Grp., LLC v. United States, 597 F.3d 1238, 1243 (Fed.Cir.2010); Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1330-32 (Fed.Cir.2001) (“Domenico Garufi”). The ADRA’s standard of review for agency procurement decisions adopted the standard of review set forth in the Administrative Procedure Act, 5 U.S.C. § 706 (2006) (the “APA”). See 28 U.S.C. § 1491(b)(4). The court has authority under the APA to set aside only an agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also PGBA, LLC v. United States, 389 F.3d 1219, 1224-28 (Fed.Cir.2004) (clarifying that ADRA incorporates arbitrary and capricious standard of APA to review procurement decisions); see also Domenico Garufi, 238 F.3d at 1332-33 (making applicable the standards applied in Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C.Cir.1970), and its progeny to bid protests). Accordingly, as restated by the Federal Circuit, “[a] bid protest proceeds in two steps.” Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed.Cir.2005). First, the court determines if, under the arbitrary and capricious standard, the agency acted either (1) without rational basis, or (2) contrary to law . Id.; see Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed.Cir.2004); Domenico Garufi, 238 F.3d at 1333; Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed.Cir.1996); Aeroplate Corp. v. United States, 67 Fed.Cl. 4, 8 (2005). Second, if the court finds that the agency acted in violation of the APA standard, “then" }, { "docid": "2104916", "title": "", "text": "1491(b)(1) (2000), as amended by the Administrative Dispute Resolution Act of 1996, Pub.L. No. 104-320, § 12, 110 Stat. 3870, 3874-75 (1996) (“ADRA”), to consider an action by an interested party objecting to an award of a contract and any alleged violation of a statute or regulation in connection with a procurement. We may provide declaratory and injunctive relief as we deem proper. 28 U.S.C. § 1491(b)(2). We are directed by section 1491(b)(4) to review the legality of an agency’s decision based on the standards set forth in the Administrative Procedure Act (“APA”), 5 U.S.C. § 706 (2000), which provides that the reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The Federal Circuit has interpreted the APA standard in the bid protest context to mean that an agency’s action may be set aside under two circumstances: “(1) [when] the procurement official’s decision lacked a rational basis; or (2) [when] the procurement procedure involved a violation of regulation or procedure.” Banknote Corp. of America v. United States, 365 F.3d 1345, 1351 (Fed.Cir.2004) (quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed.Cir.2001)). See also Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed.Cir.2005) (The reviewing court must determine “whether the government acted without rational basis or contrary to law when evaluating the bids and awarding the contract.”). The rational basis test involves a determination of “whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed bidder bears a ‘heavy burden’ of showing that the award decision had no rational basis.” Banknote Corp., 365 F.3d at 1351 (quoting Impresa, 238 F.3d at 1332) (internal citation omitted). Even if the agency’s action violated a procurement statute or procedure, the disappointed bidder still must “show a clear and prejudicial violation of applicable statutes or regulations.” Id. (quoting Impresa, 238 F.3d at 1333). In reviewing the agency’s evaluation of proposals, our review is generally limited to" }, { "docid": "19050892", "title": "", "text": "of Review The Tucker Act, as amended by the Administrative Dispute Resolution Act (ADRA), 28 U.S.C. § 1491(b)(1) (2006), confers jurisdiction on this court: to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement. 28 U.S.C. § 1491(b)(1). The court may “entertain such an action without regard to whether suit is instituted before or after the contract is awarded.” Id. “A bid protest proceeds in two steps.” Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed.Cir.2005). The first step is to demonstrate error, that is, to show that the agency acted in an arbitrary and capricious manner, without a rational basis or contrary to law. Id. The second step is to determine whether the error was prejudicial. Id. 1. The Plaintiff Must Establish Error The court reviews a bid protest action under the standards set out in the Administrative Procedure Act (APA), 5 U.S.C. § 706. 28 U.S.C. § 1491(b)(4); NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed.Cir.2004). The APA provides that an agency’s decision is to be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see Bannum, 404 F.3d at 1351; Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1329 (Fed.Cir.2004); Impresa Construzioni Geom. Domenico Garufi v. United States (Impresa), 238 F.3d 1324,1332 (Fed.Cir.2001); Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057 (Fed.Cir.2000). Under the arbitrary or capricious standard of review, an agency’s decision must be sustained if it has a rational basis. Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co. (State Farm), 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). “The arbitrary and capricious standard applicable here is highly deferential. This standard requires a reviewing court to sustain an agency action" }, { "docid": "5507029", "title": "", "text": "ADRA. Pub.L. No. 104-320, § 12(d), 110 Stat. at 3876. This action was brought in the Court of Federal Claims in April 2003. Under the ADRA, the Court of Federal Claims “review[s] the agency’s decision pursuant to the standards set forth in section 706 of title 5,” i.e., the standards found in the Administrative Procedure Act (APA). 28 U.S.C. § 1491(b)(4). Among the various APA standards of review in section 706, the proper standard to be applied in bid protest cases is provided by 5 U.S.C. § 706(2)(A): a reviewing court shall set aside the agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Advanced Data Concepts, Inc. v. United, States, 216 F.3d 1054, 1057-58 (Fed.Cir.2000) (noting that bid protests do not present an agency record derived from a hearing and thus the “substantial evidence” standard of § 706(2)(E) does not apply). In bid protest cases filed under the ADRA, the court implements this APA standard by applying the standard as previously interpreted by the district courts in the so-called Scanwell line of cases, referring to the 1970 case upholding district court APA review of Government procurement decisions. Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1331-32 (Fed.Cir.2001) (citing Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C.Cir.1970), and explaining the history of judicial review of Government procurement decisions). Under the APA standard as applied in the Scanwell line of cases, and now in ADRA cases, “a bid award may be set aside if either (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.” Id. at 1332. When a challenge is brought on the first ground, the test is “whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed bidder bears a ‘heavy burden’ of showing that the award decision had no rational basis.” Id. at 1332-33 (citations omitted). “When a challenge is brought on the second ground, the disappointed bidder must show a clear and prejudicial violation" } ]

[ { "docid": "14024647", "title": "", "text": "order to expedite the trial, the direct testimony of all witnesses was submitted in the form of statements which the witnesses adopted on the stand. These are referred to by the name of the witness followed by \"St.” . Id. ¶¶ 3-5. . Id. ¶¶ 6-7; DX 2, at 97-101. . Van Hulle St. ¶ 15. . Id. ¶ 7. . SPA §§ 2.5(a)-(b) (financial statements, liabilities), 2.15(b) (employees), 2.16(a) (benefit plans), 5.1(c) (definitions). . SPA Disc. Sched. § 5.1(c)(ii). . Id. § 2.16. . SPA § 5.1(b). . Id. § 5.1(c). . Id. § 5.4. . Id. at 39. . SPA Disc. Sched. § 8.2. . SPA § 6.2. .AAA § 2. . Compare SPA Disc. Sched. § 8.2, with AAA Sched. B. . AAA § 3. . Yenerall St. ¶ 6. . See id. ¶¶ 10-13. . In effect, the parties have waived the protection of Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 504, 508, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959), and Dairy Queen, Inc. v. Wood, 369 U.S. 469, 479, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962). . Tr. 4-6. . E.g., Hartford Fire Ins. Co. v. Orient Overseas Containers Lines (UK) Ltd., 230 F.3d 549, 558 (2d Cir.2000); New York v. Oneida Indian Nation, 90 F.3d 58, 62 (2d Cir.1996). . E.g., Metro. Life Ins. Co. v. RJR Nabisco, Inc., 906 F.2d 884, 889 (2d Cir.1990). . E.g., Investors Ins. Co. v. Dorinco Reins. Co., 917 F.2d 100, 104 (2d Cir.1990); Hanley v. Lark Deli Corp., 2 F.Supp.2d 534, 537 (S.D.N.Y.1998), aff’d sub nom. Hanley v. Deluxe Caterers of Shelter Rock, Inc., 175 F.3d 1007 (2d Cir.1999) (table). . E.g., Hotchkiss v. Nat'l City Bank, 200 F. 287, 293 (S.D.N.Y.1911), aff’d, 201 F. 664 (2d Cir.1912), aff’d, 231 U.S. 50, 34 S.Ct. 20, 58 L.Ed. 115 (1913). . McCracken St. ¶ 25. . /SPA§ 5.1(c). . Tr. 38-43; DX 11, at 15; DX 12, at 16; DX 14-16. .Tr. 23-24; 48. Indeed, the Court is persuaded that there were no internal discussions at Bayer with respect to the possibility of the Companies assuming the" } ]

[ { "docid": "7534816", "title": "", "text": "was transferred to the Southern District of New York on August 2, 2002. Psihoyos v. National Geographic Society was filed on March 7, 2002 in the District of Colorado. It was transferred to the Southern District of New York on August 9, 2002. All cases filed in or transferred to the Southern District of New York were assigned to Judge Kaplan. Greenberg was the only case not filed in, or transferred to, the Southern District of New York. On June 8, 1999, the Florida district court granted summary judgment for defendants with regard to the copyright claims. On March 22, 2001, the Eleventh Circuit reversed. Greenberg v. Nat’l Geographic Soc’y, 244 F.3d 1267, 1268 (11th Cir.2001). The Supreme Court denied certiorari on October 12, 2001. Nat’l Geographic Soc’y v. Greenberg, 534 U.S. 951, 122 S.Ct. 347, 151 L.Ed.2d 262 (2001). In the Southern District of New York, defendants filed motions to dismiss and for summary judgment in Faulkner, Ward, and Hiser in March, 2001. Ward cross-moved for summary judgment. Judge Kaplan issued two opinions (“the 1909 Act Opinions”) on July 13, 2002. Ward v. Nat’l Geographic Soc’y, 208 F.Supp.2d 429 (S.D.N.Y.2002); Faulkner v. Nat’l Geographic Soc’y, 211 F.Supp.2d 450 (S.D.N.Y.2002). The court held that issues of fact precluded entry of summary judgment for defendants with regard to some of the infringement claims. It also dismissed the claim brought by some plaintiffs against Kodak for contributory infringement. Id. at 473-75. On April 11, 2002, defendants again filed motions to dismiss and for summary judgment in Ward, Faulkner and Hiser; the plaintiffs in those actions also moved for summary judgment. Defendants filed a motion to dismiss and for summary judgment in Psihoyos on May 20, 2003. The district court granted defendants’ motions for summary judgment in Ward, Faulkner, Hiser, and Psihoyos on December 11, 2003 under Rule 54(b). Faulkner v. Nat’l Geographic Soc’y, 294 F.Supp.2d 523 (S.D.N.Y.2003). It held that the CNG was a privileged revision under Section 201(c), and, therefore, defendants did not infringe plaintiffs’ copyright in publishing their underlying works in the CNG. Id. at 543. The Faulkner and Hiser" }, { "docid": "8597959", "title": "", "text": "758 (1982) (“the rule in this State is that all elements of profit are excluded from a computation of damages in an action grounded in fraud”). . Goldberg v. Mallinckrodt, Inc., 792 F.2d 305, 307 (2d Cir.1986). . $23,000/(40,776 X 3) = 18.8 cents . This calculation reflects the adverse effect of any restrictions on the sale of the private placement stock and therefore may understate the value of the 300,000 shares. . The fact that the Court dismisses plaintiffs claims on statute of limitations grounds below does not alter the Court’s subject matter jurisdiction analysis. A court faced with a motion for summary judgment both for lack of jurisdiction and on the merits must decide the jurisdictional question first, since a disposition on the merits' is an exercise of jurisdiction. See Moreno v. United States, 965 F.Supp. 521, 523-24 (S.D.N.Y.1997). Therefore, the existence of defenses to the claim which, if valid, would preclude recovery of at least the jurisdictional amount does not affect jurisdiction because it does not go to the presence of a claim of the required size. E.g., Tongkook America, Inc. v. Shipton Sportswear Co., 14 F.3d 781, 785 (2d Cir.1994); Albert v. Apex Fitness, Inc., 1997 WL 323899, No. 97 Civ. 1151(LAK), 1997 WL 323899, at *2 (S.D.N.Y. Jun.13, 1997). . Because the judgment relied upon is a state court judgment, the effect of the judgment must be determined in accordance with state law. E.g., 28 U.S.C. § 1738; Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984); Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980). . Colon v. Coughlin, 58 F.3d 865, 869 (2d Cir.1995); see also Johnson v. Watkins, 101 F.3d 792 (2d Cir.1996); ICD Holdings S.A. v. Frankel, 976 F.Supp. 234, 239 (S.D.N.Y.1997) (quoting Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 44 (2d Cir.1986), cert. denied, 480 U.S. 948, 107 S.Ct. 1608, 94 L.Ed.2d 794 (1987)); Juan C. v. Cortines, 89 N.Y.2d 659, 679 N.E.2d 1061, 657 N.Y.S.2d 581 (1997); D’Arata v." }, { "docid": "21958638", "title": "", "text": "Corp. v. Inoco PLC, 988 F.Supp. 296, 299 (S.D.N.Y.1997), aff'd, 166 F.3d 1201 (2d Cir.1998) (citing Mellon Bank, N.A. v. United Bank Corp., 31 F.3d 113, 115 (2d Cir.1994)). . The parties appear to assume that New York law applies here. See, e.g., Def. Supp. Mem. at 8; Weingrad Pis. Mem. 14 n. 6; Weingrad Pis. Supp. Mem. 4. Although the District of Columbia also has a strong interest in the contracts at issue — several of which include a D.C. choice-of-law provision—the parties have pointed to no conflict between the relevant laws of New York and the District of Columbia, and the Court is aware of none. To the contrary, the law of the two jurisdictions is in accord on the relevant issues. Compare Air Transport Ass'n of America v. Lenkin, 711 F.Supp. 25, 28-29 (D.D.C.1989) (applying D.C. law), and Hart v. Vermont Inv. Ltd. P'ship 667 A.2d 578, 582-583 (D.C.1995), with Nycal, 988 F.Supp. at 298-303. Accordingly, no choice-of-law analysis is necessary and the Court will apply New York law. Employers Ins. of Wausau v. Duplan Corp., 899 F.Supp. 1112, 1118 (S.D.N.Y.1995) (absent showing of conflict, law of forum state applies); see also In re Rezulin Prods. Liab. Litig., 390 F.Supp.2d 319, 330 (S.D.N.Y., 2005) (\"No choice of law ruling is called for where there is no conflict of laws.”) (citing In re Allstate Ins. Co., 81 N.Y.2d 219, 223, 597 N.Y.S.2d 904, 905, 613 N.E.2d 936 (1993)). . Metro. Life Ins. v. RJR Nabiso, Inc., 906 F.2d 884, 889 (2d Cir.1990) (quoting Breed v. Ins. Co. of N. Am., 46 N.Y.2d 351, 355, 413 N.Y.S.2d 352, 355, 385 N.E.2d 1280 (N.Y.1978); see also Seiden Assocs. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir.1992)). . Metro. Life, 906 F.2d at 889; see also Omni Quartz, 287 F.3d at 64 (\"It is well established that a court may not admit extrinsic evidence in order to determine the meaning of an unambiguous contract.”). . Nycal, 988 F.Supp. at 299; Shepley v. New Coleman Holdings Inc., 174 F.3d 65, 72 (2d Cir.1999). . Nycal, 988 F.Supp. at 299, n." }, { "docid": "21958640", "title": "", "text": "11 (quoting Borkan v. Quest Med. Inc., No. 95 Civ. 10381(MBM), 1996 WL 445361, at *3 (S.D.N.Y. Aug.7, 1996)). . Def. Supp. Mem. 5. . Id. at 6. . Faulkner II, 294 F.Supp.2d at 538-39. . Id. . Seiden, 959 F.2d at 428. . Nycal, 988 F.Supp. at 299 (quoting Burger King Corp. v. Horn & Hardart Co., 893 F.2d 525, 527 (2d Cir.1990)). . Def. Supp. Mem. 3. . Nycal, 988 F.Supp. at 300. . Allen Aff. ¶ 13. . Ward, 208 F.Supp.2d at 438. . E.g., Klos v. Polskie Linie Lotnicze, 133 F.3d 164, 168 (2d Cir.1997) (objective intent of parties controls); Rosoff v. Mountain Laurel Ctr. for the Perf. Arts, 317 F.Supp.2d 493, 499 (S.D.N.Y.2004); Nycal, 988 F.Supp. at 301 (citing Hotchkiss v. Nat’l City Bank, 200 F. 287, 293 (S.D.N.Y.1911), aff'd, 201 F. 664 (2d Cir.1912), aff'd, 231 U.S. 50, 34 S.Ct. 20, 58 L.Ed. 115 (1913)); Wells v. Shearson Lehman.American Exp., 72 N.Y.2d 11, 24, 530 N.Y.S.2d 517, 524, 526 N.E.2d 8 (1988). . Faulkner II, 294 F.Supp.2d at 531, n. 30; Pan Am. World Airways, Inc. v. Aetna Cas. & Sur. Co., 505 F.2d 989, 1003 (2d Cir.1974); see also, e.g., In re Robbins Int'l, Inc., 275 B.R. 456, 465 (S.D.N.Y.2002); Bayer Corp. v. Chestnut Acquisition Corp., 189 F.Supp.2d 153, 157 (S.D.N.Y.2002); Nycal, 988 F.Supp. at 301-02. . Wells, 72 N.Y.2d at 24, 530 N.Y.S.2d at 524, 526 N.E.2d 8. . Berger Decl. Ex. 26. . Berger Decl. Ex. 18. . Ward Supp. Mem. 7; Berger Decl. Ex. 24. . Berger Decl. Ex. 33. . Ward Supp. Mem. 9. . Ward Supp. Mem. 9-10 (quoting Gilka Dep.); see also Berger Decl. Exs. 30-32 (statements from other NGS lawyers and executives discussing the differences between the Magazine risks and the CNG and legal risks associated with the marketing the CNG). . Berger Ex. 35 (Memo from NGS employee Kent Knobersteen noting discussions at NGS of \"securing separate rights of [stock photography] for the [CNG]\"). . Ward, 208 F.Supp.2d at 439-440 & n. 58; see also Evans v. Port Auth., 192 F.Supp.2d 247, 262 & n." }, { "docid": "9528307", "title": "", "text": "the notice of removal, in DeCarlo. 00 Civ. 2344(LAK). . 1998 Agreement, preamble. . Itf.Hl. . Pi. 56.1 St. ¶¶ 190, 202-11 and exhibit there cited. A copy of this agreement appears also as Exhibit C to the complaint, which is attached to the notice of removal, in DeCarlo. 00 Civ. 2344(LAK). . 17 U.S.C. § 203. . Archie Comic Publ'ns, Inc., v. DeCarlo, 141 F.Supp.2d 428, 432-35 (S.D.N.Y.2001) (\"Archie I\"). . Archie Comic Publ’ns, Inc. v. DeCarlo, No. 00 Civ. 5686QLAK), 2001 WL 1543526, at *3 (S.D.N.Y. Dec.3, 2001) (\"Archie II”) (\"[A]ny right that defendant may have to terminate rights transferred pursuant to the 1988 and 1996 Agreements must be exercised during the five year period beginning at the end of thirty-five years from the date on which the relevant grants were executed.”). . Id. at *4. . Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). . Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (\"The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”). . Id. at 248, 106 S.Ct. 2505. . Id. . DeCarlo I, 127 F.Supp.2d at 508-11. . Def. Mem. 16 (quoting DeCarlo I, 127 F.Supp.2d at 511). . Def. Mem. 16. . ICD Holdings S.A. v. Frankel, 976 F.Supp. 234, 242 (S.D.N.Y.1997) (quoting Brown v. Felsen, 442 U.S. 127, 131, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979)). . Id. at 239 (quoting Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 44 (2d Cir.1986), cert. denied, 480 U.S. 948, 107 S.Ct. 1608, 94 L.Ed.2d 794 (1987)). .E.g., Friarton Estates Corp. v. City of New York, 681 F.2d 150, 158 (2d Cir.1982) (Friendly, J.) (“Res judicata protects wrong decisions as fully as right ones.”); Ellentuck v. Klein, 570 F.2d 414, 425 (2d Cir.1978); Mitchell v. Nat'l Broad. Co., 553 F.2d 265, 272 (2d Cir.1977) (applicability of doctrine \"does not depend on" }, { "docid": "8562726", "title": "", "text": "Similarly, Mr. Rowland testified at a deposition that ”[i]t was clear to my attorneys and it was clear to Lacey, it was clear to Nycal ... that it was [a] full and final release on everything.” Id. Ex. D at 144. . Braun Aff. Ex. A at 87-88. . Braun Aff. Ex. D at 134. . ■ Id. . Id. . Glen Deck Ex. 1 at ¶ 14. . Id. at ¶¶ 16, 20. . Id. at ¶¶ 18, 20. ■ . PI. Mem. at 23-24 n.8. . Glen Deck Ex. 9, Item 3. . Id., Item 4. . PI. Mem. at 23-24 n.8. . Braun Aff. Ex. L at 7, 22. . PI. Mem. at 15. . See, e.g., Chase Manhattan Bank v. First Marion Bank, 437 F.2d 1040, 1048 (5th Cir.1971) (applying New York law); William C. Atwater & Co. v. Panama Railroad Co., 246 N.Y. 519, 159 N.E. 418, 419 (1927). . See, e.g., Hanson v. McCaw Cellular Communications, Inc., 881 F.Supp. 911, 916 (S.D.N.Y.1995), aff'd, 77 F.3d 663 (2d Cir.1996) (contrasting New York with California law) (citing Hotchkiss v. National City Bank of New York, 200 F. 287, 293 (S.D.N.Y.1911), aff'd, 201 F. 664 (2d Cir.1912), aff'd sub nom. National City Bank v. Hotchkiss, 231 U.S. 50, 34 S.Ct. 20, 58 L.Ed. 115 (1913); Mencher v. Weiss, 306 N.Y. 1, 7-8, 114 N.E.2d 177 (1953) (\"[T]he manifestation of a party's intention rather than the actual or real intention is ordinarily controlling.”)); see also Hanley v. Sevilla Restaurant & Bar, No. 96 Civ. 3193(LAK), 1997 WL 30954, at *3 (S.D.N.Y. Jan.24, 1997) (\"In determining the intention of the parties, it is the objective manifestations of their intent to one another that count, not their unexpressed subjective views.\") . Hotchkiss, 200 F. at 293. . Wells v. Shearson Lehman/American Exp., 72 N.Y.2d 11, 24, 530 N.Y.S.2d 517, 524, 526 N.E.2d 8, 14 (1988) . Id. 72 N.Y.2d at 24, 530 N.Y.S.2d at 524, 526 N.E.2d at 14. . Sally v. Sally, 225 A.D.2d 816, 638 N.Y.S.2d 832 (1996) (evidence of parties' uncommunicated subjective understanding of ambiguous language in" }, { "docid": "3209706", "title": "", "text": "only then to derive from Base Indenture § 3.04 (because this ostensible deadline nowhere appears in § 1.7(b)) the last date (February 13, 2013) on which Chesapeake can give timely notice. . On April 24, 2013, Chesapeake filed a response to BNY Mellon’s motion. See Dkt. 99. The parties also addressed the motion in their post-trial briefs. See Dkt. 110, 111. . For instance, where a contract's terms are unambiguous, courts will not allow a party's unexpressed subjective intention to raise an ambiguity. See, e.g., Klos v. Lotnicze, 133 F.3d 164, 168 (2d Cir.1997); Wells v. Shear- son Lehman/Am. Express, 72 N.Y.2d 11, 24, 530 N.Y.S.2d 517, 526 N.E.2d 8 (1988); First Montauk Sec. Corp. v. Menter, 26 F.Supp.2d 688, 689 (S.D.N.Y.1998). Similarly, where a contract is ambiguous and one or both parties to the contract seek to introduce their own unexpressed subjective intentions, courts will not rely on such evidence to resolve that ambiguity. See, e.g., Pan Am. World Airways, Inc. v. Aetna Cas. & Sur. Co., 505 F.2d 989, 1003 (2d Cir.1974); JA Apparel Corp. v. Abboud, 682 F.Supp.2d 294, 306 n. 10 (S.D.N.Y.2010); Invista B.V. v. E.I. Du Pont De Nemours & Co., No. 07 Civ. 713(WHP), 2008 WL 4865044, at *5 (S.D.N.Y. Nov. 5, 2008); Faulkner v. Nat’l Geographic Soc’y, 452 F.Supp.2d 369, 378 (S.D.N.Y.2006), aff'd, 284 Fed.Appx. 822 (2d Cir.2008) (summary order); Westfield Family Physicians v. Healthnow N.Y., Inc., 59 A.D.3d 1014, 1017, 873 N.Y.S.2d 793 (4th Dep’t 2009); Sally v. Sally, 225 A.D.2d 816, 818, 638 N.Y.S.2d 832 (3d Dep't 1996). But cf. Nycal Corp. v. Inoco PLC, 166 F.3d 1201, at *4 (2d Cir.1998) (summary order) (“We note that the proposition of law ... regarding the admissibility of evidence concerning subjective as opposed to objective intent in interpreting contracts, may not be as clearly settled in New York as the district court indicates.”). By contrast, in the rare situation in which both parties in a contract dispute have a contemporaneous understanding that, although unexpressed, is harmonious, that understanding may inform the meaning of an ambiguous contract. See, e.g., In re Sept. 11 Litig.," }, { "docid": "21958639", "title": "", "text": "Wausau v. Duplan Corp., 899 F.Supp. 1112, 1118 (S.D.N.Y.1995) (absent showing of conflict, law of forum state applies); see also In re Rezulin Prods. Liab. Litig., 390 F.Supp.2d 319, 330 (S.D.N.Y., 2005) (\"No choice of law ruling is called for where there is no conflict of laws.”) (citing In re Allstate Ins. Co., 81 N.Y.2d 219, 223, 597 N.Y.S.2d 904, 905, 613 N.E.2d 936 (1993)). . Metro. Life Ins. v. RJR Nabiso, Inc., 906 F.2d 884, 889 (2d Cir.1990) (quoting Breed v. Ins. Co. of N. Am., 46 N.Y.2d 351, 355, 413 N.Y.S.2d 352, 355, 385 N.E.2d 1280 (N.Y.1978); see also Seiden Assocs. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir.1992)). . Metro. Life, 906 F.2d at 889; see also Omni Quartz, 287 F.3d at 64 (\"It is well established that a court may not admit extrinsic evidence in order to determine the meaning of an unambiguous contract.”). . Nycal, 988 F.Supp. at 299; Shepley v. New Coleman Holdings Inc., 174 F.3d 65, 72 (2d Cir.1999). . Nycal, 988 F.Supp. at 299, n. 11 (quoting Borkan v. Quest Med. Inc., No. 95 Civ. 10381(MBM), 1996 WL 445361, at *3 (S.D.N.Y. Aug.7, 1996)). . Def. Supp. Mem. 5. . Id. at 6. . Faulkner II, 294 F.Supp.2d at 538-39. . Id. . Seiden, 959 F.2d at 428. . Nycal, 988 F.Supp. at 299 (quoting Burger King Corp. v. Horn & Hardart Co., 893 F.2d 525, 527 (2d Cir.1990)). . Def. Supp. Mem. 3. . Nycal, 988 F.Supp. at 300. . Allen Aff. ¶ 13. . Ward, 208 F.Supp.2d at 438. . E.g., Klos v. Polskie Linie Lotnicze, 133 F.3d 164, 168 (2d Cir.1997) (objective intent of parties controls); Rosoff v. Mountain Laurel Ctr. for the Perf. Arts, 317 F.Supp.2d 493, 499 (S.D.N.Y.2004); Nycal, 988 F.Supp. at 301 (citing Hotchkiss v. Nat’l City Bank, 200 F. 287, 293 (S.D.N.Y.1911), aff'd, 201 F. 664 (2d Cir.1912), aff'd, 231 U.S. 50, 34 S.Ct. 20, 58 L.Ed. 115 (1913)); Wells v. Shearson Lehman.American Exp., 72 N.Y.2d 11, 24, 530 N.Y.S.2d 517, 524, 526 N.E.2d 8 (1988). . Faulkner II, 294 F.Supp.2d at 531," }, { "docid": "3209598", "title": "", "text": "because the negotiations between Chesapeake and BAML were sufficiently adversarial and arm’s-length to guard against the concerns about collusion and unfair surprise that animate the doctrine. In addition, in practice, BNY Mellon’s argument would fundamentally reshape the way bond indentures are negotiated, by causing the issuer to actively involve a future indenture trustee in the process of negotiating the indenture’s terms, lest the failure to do so hamstring the issuer in future litigation. 1. The Doctrine of Unmanifested Intent The doctrine of unmanifested intent reflects the principle that the parties’ objective manifestations of their intent — i.e., their words to each other and their deeds — are most probative in contract formation and interpretation. See Law Debenture Trust, 595 F.3d at 467 (“[T]he objective of contract interpretation is to give effect to the expressed intentions of the parties.” (emphasis in original) (citation omitted)); Hotchkiss v. Nat’l City Bank of N.Y., 200 F. 287, 293 (S.D.N.Y.1911) (Hand, J.), aff'd, 201 F. 664 (2d Cir.1912), aff'd, 231 U.S. 50, 34 S.Ct. 20, 58 L.Ed. 115 (1913). It seeks to prevent a party from concealing its understanding of the contract from a counterparty, only to reveal that understanding later or to invent a post hoc rationalization in aid of a litigation position. See Mercury Partners LLC v. Pac. Med. Bldgs., LP, No. 02 Civ. 6005(HBP), 2007 WL 2197830, at *14 (S.D.N.Y. July 31, 2007) (“It is the parties’ ‘intention as it existed at the time the contract was executed which must control rather than any subsequent intention tailored to complement an individual’s posture once an agreement has gone sour.’ ” (quoting New England Merchs. Nat’l Bank v. Iran Power Generation & Transmission Co., 502 F.Supp. 120, 127 (S.D.N.Y.1980))). In light of these concerns, when a party seeks to introduce statements of its subjective intent that it did not communicate to the other party at the time of the drafting and that concern the ultimate meaning of the contract, courts typically do not consider, or assign little weight to, such evidence. That said, evidence of a party’s uncommunicated subjective intent is not categorically inadmissible." }, { "docid": "12429133", "title": "", "text": "This argument utterly misconstrues the nature of the presumption triggered by satisfaction of the instance, expense, and supervision requirements. . See Ward, 208 F.Supp.2d at 436 n. 31, -text accompanying nn. 46-51. . Id. at-& text accompanying nn. 48-49. . Allen Aff. ¶ 10 (Pl.Ex. Opp.l). . See Hotchkiss v. Nat'l City Bank, 200 F. 287, 293 (S.D.N.Y.1911), aff'd, 201 F. 664 (2d Cir.1912), aff'd, 231 U.S. 50, 34 S.Ct. 20, 58 L.Ed. 115 (1913); see also Thomas v. Stone Container Corp., 922 F.Supp. 950, 957 (S.D.N.Y.1996) (when issue was whether defendant lacked special equipment used by INDT to perform the work in which plaintiff assisted, plaintiff's \"understanding” that the defendant lacked this equipment was not relevant). . PI. Mem. Ex. A. . See Def.App. Ex. B. . See Ward, 208 F.Supp.2d at- & text accompanying nn. 58-62. . Allen Aff. ¶¶ 3-10 (Pl.Ex. Opp.l). . Id. ¶ 10. . Def. 56.1 St. ¶ 37. . Cf. Sayers v. Rochester Tel. Corp., 7 F.3d 1091, 1094 (2d Cir.1993) (“In a contract dispute a motion for summary judgment may be granted only where the agreement’s language is unambiguous and conveys a definite meaning. If the language is susceptible to different reasonable interpretations, and where there is relevant extrinsic evidence of the parties' actual intent, then the contract's meaning becomes an issue of fact precluding summary judgment.” (internal quotation marks and citations omitted)). . See supra notes 43, 45. . Cf. Playboy Enters., Inc. v. Dumas, 831 F.Supp. 295, 312 (S.D.N.Y.1993) (\"An assignment would not make sense if the parties presumed that Playboy would be the author of the work for statutory purposes.”), aff’d in part and rev’d in part on other grounds, 53 F.3d 549 (2d Cir.), cert. denied, 516 U.S. 1010, 116 S.Ct. 567, 133 L.Ed.2d 491 (1995). . Def.App. Ex. K. . Additionally, Hiser has produced evidence that NGS paid him for subsequent use of photographs originally appearing in The Lone Coyote story. See supra note 44. This contributes to the presence of a genuine issue of fact. . The Court is aware that language granting \"all rights” does" }, { "docid": "8562727", "title": "", "text": "New York with California law) (citing Hotchkiss v. National City Bank of New York, 200 F. 287, 293 (S.D.N.Y.1911), aff'd, 201 F. 664 (2d Cir.1912), aff'd sub nom. National City Bank v. Hotchkiss, 231 U.S. 50, 34 S.Ct. 20, 58 L.Ed. 115 (1913); Mencher v. Weiss, 306 N.Y. 1, 7-8, 114 N.E.2d 177 (1953) (\"[T]he manifestation of a party's intention rather than the actual or real intention is ordinarily controlling.”)); see also Hanley v. Sevilla Restaurant & Bar, No. 96 Civ. 3193(LAK), 1997 WL 30954, at *3 (S.D.N.Y. Jan.24, 1997) (\"In determining the intention of the parties, it is the objective manifestations of their intent to one another that count, not their unexpressed subjective views.\") . Hotchkiss, 200 F. at 293. . Wells v. Shearson Lehman/American Exp., 72 N.Y.2d 11, 24, 530 N.Y.S.2d 517, 524, 526 N.E.2d 8, 14 (1988) . Id. 72 N.Y.2d at 24, 530 N.Y.S.2d at 524, 526 N.E.2d at 14. . Sally v. Sally, 225 A.D.2d 816, 638 N.Y.S.2d 832 (1996) (evidence of parties' uncommunicated subjective understanding of ambiguous language in contract is irrelevant); see also Padovano v. Vivian, 217 A.D.2d 868, 869, 629 N.Y.S.2d 844, 846 (3d Dept.1995) (even if phrase \"good working order” were ambiguous, \"extrinsic evidence of the parties uncommunicated subjective intent would be irrelevant”); Hudson-Port Ewen Assocs. v. Kuo, 165 A.D.2d 301, 566 N.Y.S.2d 774, 777, aff'd, 78 N.Y.2d 944, 573 N.Y.S.2d 637, 578 N.E.2d 435 (1991) (\"[i]n the absence of any evidence that the opposing views now advanced were either discussed or considered by the parties during the process leading up to the execution of the agreement, the words in the contract must be given the meaning which those to whom they are addressed would reasonably be expected to perceive.”) . Despite the clarity of this rule, a few cases have used language which could be construed as suggesting that unexpressed subjective views might be considered in order to resolve ambiguity. In particular, Walk-In Med. Center, Inc. v. Breuer Capital Corp., 818 F.2d 260 (2d Cir.1987), stated that \"[e]vidence of the parties' subjective intent was ... properly admitted” in order to" }, { "docid": "4255220", "title": "", "text": ". Miller v. Schloss, 218 N.Y. 400, 406-407, 113 N.E. 337 (1916). . Ward Dep. 32. . Cf. Restatement (Second) of Contracts § 19(2) (1979) (conduct may manifest assent effectively if the person engaging in the conduct \"knows or has reason to know that the other party may infer from his conduct that he assents”); id. §§ 220, 221 (custom and usage may be used to interpret or supplement an express agreement when each party knows or has reason to know of the usage and neither party knows or has reason to know that the other party has an intention inconsistent with the usage). . Gilka Aff. ¶¶ 3-4. . Id. ¶ 8. . Id. at ¶ 9. . Id. ¶ 10. . Only admissible evidence may be considered in passing on motions for summary judgment. Evans v. Port Authority, 192 F.Supp.2d 247, 262 & n. 16 (S.D.N.Y.2002) (citing cases). . Mr. Gilka acted as NGS’s agent in its contractual relations with Mr. Ward, and no one disputes that he had the authority to bind the company. Thus, if an implied-in-fact contract arose, it was through the conduct of Mr. Gilka and Mr. Ward. . Hotchkiss v. Nat’l City Bank, 200 F. 287, 293 (S.D.N.Y.1911), aff'd, 201 F. 664 (2d Cir.1912), aff'd, 231 U.S. 50, 34 S.Ct. 20, 58 L.Ed. 115 (1913). . Although defendants have offered considerable evidence undercutting Mr. Gilka’s credibility on this point, see, e.g., Def. Reply App. Exs. J-4, J-7, it is axiomatic that delicate assessments of credibility are not proper on a motion for summary judgment. See Hayes v. New York City Dept. of Corrections, 84 F.3d 614, 619 (2d Cir.1996) (citing United States v. Rem, 38 F.3d 634, 644 (2d Cir.1994)). . See Hotchkiss, 200 F. at 293. . E.g., PL Supp. Summary Judgment Ex. 7 (payment for reuse of photo from Everglades story); id. Ex. 8 (letter requesting \"permission” and making payment for reuse of photo from Costa Rica story); id. Ex. 9 (payment for reuse of photo previously published in Everglades filmstrip, stating \"[i]t is understood that you represent ownership of the" }, { "docid": "21958641", "title": "", "text": "n. 30; Pan Am. World Airways, Inc. v. Aetna Cas. & Sur. Co., 505 F.2d 989, 1003 (2d Cir.1974); see also, e.g., In re Robbins Int'l, Inc., 275 B.R. 456, 465 (S.D.N.Y.2002); Bayer Corp. v. Chestnut Acquisition Corp., 189 F.Supp.2d 153, 157 (S.D.N.Y.2002); Nycal, 988 F.Supp. at 301-02. . Wells, 72 N.Y.2d at 24, 530 N.Y.S.2d at 524, 526 N.E.2d 8. . Berger Decl. Ex. 26. . Berger Decl. Ex. 18. . Ward Supp. Mem. 7; Berger Decl. Ex. 24. . Berger Decl. Ex. 33. . Ward Supp. Mem. 9. . Ward Supp. Mem. 9-10 (quoting Gilka Dep.); see also Berger Decl. Exs. 30-32 (statements from other NGS lawyers and executives discussing the differences between the Magazine risks and the CNG and legal risks associated with the marketing the CNG). . Berger Ex. 35 (Memo from NGS employee Kent Knobersteen noting discussions at NGS of \"securing separate rights of [stock photography] for the [CNG]\"). . Ward, 208 F.Supp.2d at 439-440 & n. 58; see also Evans v. Port Auth., 192 F.Supp.2d 247, 262 & n. 16 (S.D.N.Y.2002) (citing cases). . LaSalle Bank Nat. Ass'n v. Nomura Asset Capital Corp., 424 F.3d 195, 208 n. 10 (2d Cir.2005) (quoting Murray Walter, Inc. v. Sarkisian Bros., Inc., 183 A.D.2d 140, 146, 589 N.Y.S.2d 613, 616 (3d Dept.1992)); see also Ingersoll Milling Mach. Co. v. M/V Bodena, 619 F.Supp. 493, 506 (S.D.N.Y.1985) (one party's subjective interpretation of contract, which was not communicated to the other party until litigation commenced, \"cannot be used to establish that [parties] had such intent and understanding when they entered into the ... contract”); 22 N.Y. Jur.2d, Contracts § 224 (\"A unilateral expression of one party's postcontractual subjective understanding of an ambiguous agreement is not, however, probative as an aid to interpretation of the contract where there is no manifestation of mutual assent to such understanding, and thus such expression is not admissible as extrinsic evidence of the parties' mutual intent.”) .Def. Supp. Mem. 3-4. . Def. Supp.App. Ex 37 (payment to Ward for use of two previously published Magazine photos in a multi-image slide presentation for promotional purposes)," }, { "docid": "8562730", "title": "", "text": "parties would be relevant. 466 N.Y.S.2d at 466. Robinson, however, does not authorize the wholesale introduction of subjective evidence, but is instead limited to the unremarkable assertion that the subsequent conduct of the parties is admissible to interpret an ambiguous contract. 440 N.Y.S.2d at 129. Such evidence is a far cry from testimony concerning unexpressed personal understandings prohibited by Hotchkiss and its progeny. Surlak therefore does not support the language in Walk-In for which it is cited. In the final analysis, the quoted sentence in Walk-In, to whatever extent it properly is read to approve reliance on uncommunicated expressions of subjective intent, is inconsistent with the overwhelming weight of authority. . See Hanley v. Sevilla Restaurant & Bar, No. 96 Civ. 3193(LAK), 1997 WL 30954, at *3 (S.D.N.Y. Jan.24, 1997); Hanson v. McCaw Cellular Communications, Inc., 881 F.Supp. 911, 916 (S.D.N.Y.1995), aff'd, 77 F.3d 663 (2d Cir.1996); Hotchkiss v. National City Bank of New York, 200 F. 287, 293 (S.D.N.Y.1911), aff'd, 201 F. 664 (2d Cir.1912), aff'd sub nom. National City Bank v. Hotchkiss, 231 U.S. 50, 34 S.Ct. 20, 58 L.Ed. 115 (1913); Wells v. Shearson Lehman/American Exp., 72 N.Y.2d 11, 24, 530 N.Y.S.2d 517, 524, 526 N.E.2d 8 (1988); Mencher v. Weiss, 306 N.Y. 1, 7-8, 114 N.E.2d 177 (1953); Sally v. Sally, 225 A.D.2d 816, 638 N.Y.S.2d 832 (3d Dept.1996); Padovano v. Vivian, 217 A.D.2d 868, 869, 629 N.Y.S.2d 844, 846 (3d Dept.1995); Hudson-Port Ewen Assocs. v. Kuo, 165 A.D.2d 301, 566 N.Y.S.2d 774, 777, aff'd, 78 N.Y.2d 944, 573 N.Y.S.2d 637, 578 N.E.2d 435 (3d Dept.1991). . Braun Aff. Ex. A at 87-88; Id. Ex. D at 134. . Id. Ex. B at 65; id. Ex. A at 148; id. Ex. D. at 144. . Glen Decl. Ex. 1. . Mr. Horn’s own testimony indicates that he never objectively manifested or communicated his own understanding of the nature of the release to Inoco. Id. at ¶¶ 18, 20. The lack of any objective manifestation of Horn’s viewpoint is not the only flaw in Nycal’s reliance on his testimony, however. Horn’s lack of personal knowledge concerning the" }, { "docid": "9528308", "title": "", "text": "(1986) (\"The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”). . Id. at 248, 106 S.Ct. 2505. . Id. . DeCarlo I, 127 F.Supp.2d at 508-11. . Def. Mem. 16 (quoting DeCarlo I, 127 F.Supp.2d at 511). . Def. Mem. 16. . ICD Holdings S.A. v. Frankel, 976 F.Supp. 234, 242 (S.D.N.Y.1997) (quoting Brown v. Felsen, 442 U.S. 127, 131, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979)). . Id. at 239 (quoting Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 44 (2d Cir.1986), cert. denied, 480 U.S. 948, 107 S.Ct. 1608, 94 L.Ed.2d 794 (1987)). .E.g., Friarton Estates Corp. v. City of New York, 681 F.2d 150, 158 (2d Cir.1982) (Friendly, J.) (“Res judicata protects wrong decisions as fully as right ones.”); Ellentuck v. Klein, 570 F.2d 414, 425 (2d Cir.1978); Mitchell v. Nat'l Broad. Co., 553 F.2d 265, 272 (2d Cir.1977) (applicability of doctrine \"does not depend on whether the prior judgment was free from error”); 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice And Procedure- Jurisdiction And Related Matters 2D § 4403, at 30-33 (2002) (“res judicata is not defeated by error in the initial judgment”; \"ordinarily applies despite the availability of new evidence ... ”). While the Restatement Of Judgments 2D suggests that an exception might be made where the prior judgment is the product of the defendant's fraud, see restatement Of Judgments 2D § 26, com. j (1982), such exceptions seldom have been made in practice, 18 WRIGHT § 4415, at 359-62. In any case, as noted above, there has been no showing in this case of fraud in DeCarlo I. . Playboy Enters., Inc. v. Dumas, 53 F.3d at 549, 554 (2d Cir.1995). . Siegel v. Nat’l Periodical Publ’ns, Inc., 508 F.2d 909, 914 (2d Cir.1974). . Picture Music, Inc. v. Bourne, Inc., 457 F.2d 1213, 1216 (2d Cir.1972). . Playboy, 53 F.3d at 555. . See, e.g., DeCarlo Dep. 2 at 14 (explaining" }, { "docid": "4255221", "title": "", "text": "the company. Thus, if an implied-in-fact contract arose, it was through the conduct of Mr. Gilka and Mr. Ward. . Hotchkiss v. Nat’l City Bank, 200 F. 287, 293 (S.D.N.Y.1911), aff'd, 201 F. 664 (2d Cir.1912), aff'd, 231 U.S. 50, 34 S.Ct. 20, 58 L.Ed. 115 (1913). . Although defendants have offered considerable evidence undercutting Mr. Gilka’s credibility on this point, see, e.g., Def. Reply App. Exs. J-4, J-7, it is axiomatic that delicate assessments of credibility are not proper on a motion for summary judgment. See Hayes v. New York City Dept. of Corrections, 84 F.3d 614, 619 (2d Cir.1996) (citing United States v. Rem, 38 F.3d 634, 644 (2d Cir.1994)). . See Hotchkiss, 200 F. at 293. . E.g., PL Supp. Summary Judgment Ex. 7 (payment for reuse of photo from Everglades story); id. Ex. 8 (letter requesting \"permission” and making payment for reuse of photo from Costa Rica story); id. Ex. 9 (payment for reuse of photo previously published in Everglades filmstrip, stating \"[i]t is understood that you represent ownership of the rights herein granted”). . Cf. Playboy Enters., Inc. v. Dumas, 831 F.Supp. 295, 312 (S.D.N.Y.1993) (\"An assignment would not make sense if the parties presumed that Playboy would be the author of the work for statutory purposes.”), aff'd in part and rav'd in part on other grounds, 53 F.3d 549 (2d Cir.), cert. denied, 516 U.S. 1010, 116 S.Ct. 567, 133 L.Ed.2d 491 (1995). . E.g., Allen Deck ¶ 5. . Def. Reply App. Ex. J — 11. The Court is aware that language granting \"all rights” does not necessarily or unambiguously transfer copyright ownership. See Playboy Enters., 831 F.Supp. at 305. However, it must be remembered that defendants here enjoy the presumption resulting from their satisfaction of the instance, expense, and supervision requirements. There is absolutely no ambiguity in the retention of \"all rights” by NGS when it comes to deciding whether there was an express or implied agreement reserving copyright to Ward. . Allstate Ins. Co. v. Administratia Asigurarilor De Stat, 948 F.Supp. 285, 310 (S.D.N.Y.1996). . Affidavit of Robert E. Gilka in" }, { "docid": "13257460", "title": "", "text": "employer argued, inter alia, that the handbook in question was not an offer. Id. at 286. The court employed traditional contract theory and stated that, to be effective, an offer must be sufficiently definite in its terms. Id. This rule is premised on the understanding that, “ ‘[a] contract has, strictly speaking, nothing to do with the personal, or individual intent of the parties. A contract is an obligation attached by the mere force of law to certain acts of the parties, usually words, which ordinarily accompany and represent a known intent.’ ” Id. at 285 (quoting Hotchkiss v. National City Bank, 200 F. 287, 293 (S.D.N.Y.1911) (Learned Hand, J.), aff'd sub nom. Ernst v. Mechanics’ & Metals Nat’l Bank, 201 F. 664 (2d Cir.1912), aff'd nom. National City Bank v. Hotchkiss, 231 U.S. 50, 34 S.Ct. 20, 58 L.Ed. 115 (1913)). For that reason, Iowa courts “look for terms with precise meaning that provide certainty of performance. This is a definiteness inquiry: if an offer is indefinite there is no intent to be bound.” Id. (internal citations omitted); accord Palmer v. Albert, 310 N.W.2d 169, 172 (Iowa 1981) (“We have a number of cases supporting the principle that a contract must be definite and certain in order to be given legal effect.”) (citing Davis v. Davis, 261 Iowa 992, 1001, 156 N.W.2d 870, 876 (1968); Lewis v. Minnesota Mut. Life Ins. Co., 240 Iowa 1249, 1258, 37 N.W.2d 316, 321 (1949); Gould v. Gunn, 161 Iowa 155, 164, 140 N.W. 380, 384 (1913); Faulkner v. Des Moines Drug Co., 117 Iowa 120, 122, 90 N.W. 585, 586 (1902)). To guide its definiteness inquiry, the court identified three factors: (1) whether the provisions contained in the handbook were merely a statement of policy or, rather, were' directives; (2) whether the language was “detailed and definite or general and vague”; and (3) whether “the employer ha[d] the power to alter the [terms] at will.” Id. Outside the context of employee handbook cases, the Iowa Supreme Court has cautioned against carrying the definiteness inquiry to extremes: In Severson v. Elberon Elevator, Inc.," }, { "docid": "12429132", "title": "", "text": "Ex. E-2 (Hiser letter contract, setting out in more detail how the minimum guarantee works and specifying that some photographs will be chosen for publication and some will not, the latter being returned to photographer); id. Ex. L-2 (Jacobson letter contract, giving her detailed instructions on what NGS wanted to see in her article); Doranne Jacobson Dep. 30 (indicating that NGS told Dr. Jacobson; \"This is how we take pictures at the Geographic. We take a lot of images. Don't be afraid to use film. We will be providing you with all the film you need”). . Allen Aff. ¶ 10 (Pl.Ex. Opp.l). . See Picture Music, 457 F.2d at 1216-17. . Allen Aff. ¶ 10 (PI Ex. Opp. 1) (\"The terms of the contract clearly do not indicate a work-for-hire relationship, and specifically make no reference to transfer of copyright.”). Allen attempts to invoke the lack of a clause relating to copyright in the May 21, 1965 letter agreement as evidence of NGS's \"intention that my Father and I would retain the copyright.” Id. This argument utterly misconstrues the nature of the presumption triggered by satisfaction of the instance, expense, and supervision requirements. . See Ward, 208 F.Supp.2d at 436 n. 31, -text accompanying nn. 46-51. . Id. at-& text accompanying nn. 48-49. . Allen Aff. ¶ 10 (Pl.Ex. Opp.l). . See Hotchkiss v. Nat'l City Bank, 200 F. 287, 293 (S.D.N.Y.1911), aff'd, 201 F. 664 (2d Cir.1912), aff'd, 231 U.S. 50, 34 S.Ct. 20, 58 L.Ed. 115 (1913); see also Thomas v. Stone Container Corp., 922 F.Supp. 950, 957 (S.D.N.Y.1996) (when issue was whether defendant lacked special equipment used by INDT to perform the work in which plaintiff assisted, plaintiff's \"understanding” that the defendant lacked this equipment was not relevant). . PI. Mem. Ex. A. . See Def.App. Ex. B. . See Ward, 208 F.Supp.2d at- & text accompanying nn. 58-62. . Allen Aff. ¶¶ 3-10 (Pl.Ex. Opp.l). . Id. ¶ 10. . Def. 56.1 St. ¶ 37. . Cf. Sayers v. Rochester Tel. Corp., 7 F.3d 1091, 1094 (2d Cir.1993) (“In a contract dispute a motion for" }, { "docid": "21958637", "title": "", "text": "477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); White v. ABCO Eng’g Corp., 221 F.3d 293, 300 (2d Cir.2000). . Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). . United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Hetchkop v. Woodlawn at Grassmere, Inc., 116 F.3d 28, 33 (2d Cir.1997). . Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Virgin Atl. Airways Ltd. v. British Airways PLC, 257 F.3d 256, 273 (2d Cir.2001). . See, e.g., Nora Beverages, Inc. v. Perrier Group of Am., Inc., 269 F.3d 114, 123-24 (2d Cir.2001). . See, e.g., Nebraska v. Wyoming, 507 U.S. 584, 590, 113 S.Ct. 1689, 123 L.Ed.2d 317 (1993); Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995). . Omni Quartz, Ltd. v. CVS Corp., 287 F.3d 61, 64 (2d Cir.2002) (citing Seiden Assocs. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir.1992)); Nycal Corp. v. Inoco PLC, 988 F.Supp. 296, 299 (S.D.N.Y.1997), aff'd, 166 F.3d 1201 (2d Cir.1998) (citing Mellon Bank, N.A. v. United Bank Corp., 31 F.3d 113, 115 (2d Cir.1994)). . The parties appear to assume that New York law applies here. See, e.g., Def. Supp. Mem. at 8; Weingrad Pis. Mem. 14 n. 6; Weingrad Pis. Supp. Mem. 4. Although the District of Columbia also has a strong interest in the contracts at issue — several of which include a D.C. choice-of-law provision—the parties have pointed to no conflict between the relevant laws of New York and the District of Columbia, and the Court is aware of none. To the contrary, the law of the two jurisdictions is in accord on the relevant issues. Compare Air Transport Ass'n of America v. Lenkin, 711 F.Supp. 25, 28-29 (D.D.C.1989) (applying D.C. law), and Hart v. Vermont Inv. Ltd. P'ship 667 A.2d 578, 582-583 (D.C.1995), with Nycal, 988 F.Supp. at 298-303. Accordingly, no choice-of-law analysis is necessary and the Court will apply New York law. Employers Ins. of" }, { "docid": "8562721", "title": "", "text": "CRL, and thus Gulf, in a manner that other frauds did not . Nycal offers no authority whatsoever in support of its proposition that this alleged difference-in-kind exempts this particular fraud from the otherwise-preclusive effect of the Bellefonte rule. Most likely, the failure to address Bellefonte results from the fact that Nycal intended this argument to rebut Ino-co’s argument that there was no justifiable reliance in this case. Regardless of its purpose, however, the “distinction” highlighted by Nycal presents no reasoned basis for departing from the Bellefonte rule. Nycal therefore is precluded from asserting that it was fraudulently induced to enter the Settlement Agreement by Inoco’s alleged failure to disclose fully the extent of its alleged frauds during negotiation of the Settlement Agreement. Conclusion For the' foregoing reasons,' the defendants’ motion for summary judgment dismissing the complaint is granted. SO ORDERED. . The Court assumes familiarity with its prior opinions in this matter in Nycal Corp. v. Inoco PLC, 949 F.Supp. 1115 (S.D.N.Y.1997) (\"Nycal I\") and Nycal Corp. v. Inoco PLC, 968 F.Supp. 147 (S.D.N.Y.1997) (\"Nycal II\"). . Def. 56.1 Statement ¶¶ 46, 47; Pi. 56.1 Statement ¶1146, 47. . Def. 56.1 Statement 1148; PI. 56.1 Statement ¶ 48. . Def. 56.1 Statement ¶¶ 50, 51; Pi. 56.1 Statement ¶¶ 50, 51. . Braun Aff. Ex. L, M. . Id. Ex. M. (emphasis added). . Id. Ex. H. . See Mellon Bank, N.A. v. United Bank Corp. of New York, 31 F.3d 113, 115 (2d Cir.1994); Wards Co. v. Stamford Ridgeway Assocs., 761 F.2d 117, 120 (2d Cir.1985); Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975). . See, e.g., Sayers v. Rochester Telephone Corp., 1 F.3d 1091 (2d Cir.1993); Rothenberg v. Lincoln Fann Camp, Inc., 755 F.2d 1017, 1019 (2d Cir. 1985); Schering Corp. v. Home Insurance Co., 712 F.2d 4, 9 (2d Cir.1983); Schine v. Schine, 250 F.Supp. 822, 826 (S.D.N.Y.1966). The commonality of this unfortunately persistent phrasing perhaps explains the erroneous statement in plaintiff's memorandum that \"[i]t is ... axiomatic that 'a motion for summary judgment may be granted only where the agreements'" } ]

[ { "docid": "10375744", "title": "", "text": "Fred J. Sperapani, supra at 331. Respondent has cited for our consideration and we have found numerous cases in which courts have sustained his rejection of an untimely election. We find these cases to be distinguishable from the instant Case. In each one the following set of circumstances prevailed: (1) The original action or failure to act was inconsistent with the position the taxpayer ultimately chose to elect. National Western Life Insurance Co., 54 T.C. 33 (1970); Jack R. Goldstone, supra; (2) The allowance of an untimely election would permit the taxpayer the use of hindsight to play both ends against the middle. Estate of George Stamos, 55 T.C. 468 (1970); (3) Respondent would be prejudiced were an untimely election permitted. Pacific National Co. v. Welch, 304 U.S. 191 (1938); (4) The applicable statute or regulation provided with detailed specificity the manner in which an election was to be made. Camiel Thorrez, 31 T.C. 655 (1958), affd. 272 F.2d 945 (6th Cir. 1959); (5) The required action related to the substance of the statutory scheme. Posey v. United States, 449 F.2d 228 (5th Cir. 1971); Lee R. Dunavant, supra; Lambert v. Commissioner, 338 F.2d 4 (2d Cir. 1964), affg. T.C. Memo. 1963-296; and (6) The untimely election would affect the taxpayer’s tax liability for another year. Denman Tire & Rubber Co., 14 T.C. 706 (1950), affd. 192 F.2d 261 (6th Cir. 1951). We find none of the foregoing factors to be present in the instant case. As noted previously respondent is not in any manner prejudiced by petitioners’ actions which taken as a whole have been entirely consistent. Petitioners have always thought themselves to be excepted from section 1251 and have proceeded accordingly. Further, respondent’s regulations do not specify any particular form by which an election is to be made. See Alfred N. Hoffman, 47 T.C. 218 (1966), affd. per curiam 391 F.2d 930 (5th Cir. 1968). Petitioners on their return provided information sufficient to indicate compliance with section 1251(b)(4)(A) and the required attached statement would have added nothing to respondent’s knowledge. Moreover, petitioners have had no opportunity to avail" } ]

[ { "docid": "18142973", "title": "", "text": "a failed attempt to invoke substantial compliance, but even there the taxpayers were able to show intent. That TEFRA-related case involved a situation in which the taxpayers alleged that, when they filed an amended individual income tax return, they really intended to file an administrative adjustment request under section 6227. Their argument failed because “[t]he requisite intent needed to be present contemporaneously with the filing of the partner AAR, not later when petitioners believed it to be more advantageous to have had that intent initially.” Id. at 345-346. Likewise here; the intent to make an election under section 6223(e) needed to be present at the time the purported election was made, not 1,761 days later and with the benefit of hindsight. Another case cited in the proposed report also focused on intent, but phrased the standard a bit more expansively. In Fischer Indus., Inc., the Court articulated the standard as one that is governed by intent, stating: “We have examined the cases as to what constitutes a statement of election under various provisions of the Internal Revenue Code and have found that, absent a formal election, a submitted return and its attached schedules must evidence an affirmative intent on taxpayer’s part to make the required election and be bound thereby. Failure to manifest such intent has repeatedly resulted in taxpayer’s alleged election being rejected.” * * * [Fischer Indus., Inc. v. Commissioner, 87 T.C. at 122 (quoting Atl. Veneer Corp. v. Commissioner, 85 T.C. 1075, 1082-1083 (1985), aff’d, 812 F.2d 158 (4th Cir. 1987)); citations omitted.] In that case, the Court noted that an election can, in some situations be made on an amended return, stating that “if the circumstances necessitating an election arise after the filing of an original return, [the election can be made] as soon as practicable on an amended return.” Id. In the case before us, the purported election does not appear on a return but on the petition filed in this Court. If we were to apply the standard from Fischer in this case, we would ask whether the Bedrosians’ intent to elect out of" }, { "docid": "18142977", "title": "", "text": "to a harsh result which is well out of proportion to the omission. Without such a fix, petitioners would be denied their day in Court.” Proposed report at 18 (citations omitted). The Bedrosians’ day in court to challenge partnership items was available to them by filing a timely petition from the FPAA. If they did not receive notice, it was by operation of the last known address rule as implemented through TEFRA. While the result might be unfortunate, this is the way the TEFRA rules operate in this case. And the Bedrosians have already challenged whether the TEFRA notice was effective and lost, in both this Court and the Court of Appeals for the Ninth Circuit. It is not for us to create a remedy where none exists. In sum, we conclude that the Bedrosians did not intend to make an election under section 6223(e)(3). Even if we look past their lack of intent, we conclude that their petition did not substantially comply with the requirements to make such an election. In so concluding, we do not disturb the findings of fact in the proposed report. III. Application of Section 6231(g)(2) In an effort to explore options that even the parties had not considered, the Court ordered the parties to submit memoranda on the question of whether section 6231(g)(2) might apply in this case. Under section 6231(g)(2), the TEFRA provisions do not apply to a partnership if the Secretary reasonably determines, on the basis of the face of the partnership return, that TEFRA does not apply. A. Application of TEFRA In prior cases we have described the TEFRA procedures as “distressingly complex and confusing”. See, e.g., Tigers Eye Trading, LLC v. Commissioner, 138 T.C. 67, 92 (2012); Rhone-Poulenc Surfactants & Specialties, L.P. v. Commis sioner, 114 T.C. at 539-540. It can even be complex and confusing to determine whether a partnership is subject to TEFRA. The TEFRA provisions begin with the presumption that TEFRA applies to any entity that is required to file a partnership return. Sec. 6231(a)(1)(A). But there is an exception for small partnerships. A small partnership is" }, { "docid": "10801657", "title": "", "text": "Park Broadcasting, Inc. v. Commissioner, 78 T.C. 1093 (1982), petitioners contend that in the absence of a requirement that the election be filed with an original return, filing the Form 970 with an amended return fully satisfies the timeliness requirement of section 472. Although petitioners’ arguments are well crafted, we are unpersuaded that Mayfran made a timely election for 1975. In general, substantial compliance with election requirements entails, at a minimum, a clear expression of the taxpayer’s intention to elect appearing either on the original return or, if the circumstances necessitating an election arise after the filing of an original return, as soon as practicable on an amended return. Knight-Ridder Newspapers v. United States, 743 F.2d 781 (11th Cir. 1984); Atlantic Veneer Corp. v. Commissioner, 85 T.C. 1075 (1985). As we said in Atlantic Veneer Corp. v. Commissioner, supra at 1082-1083: We have examined the cases as to what constitutes a statement of election under various provisions of the Internal Revenue Code and have found that, absent a formal election, a submitted return and its attached schedules must evidence an affirmative intent on taxpayer’s part to make the required election and be bound thereby. E.g., American Air Filter Co. v. Commissioner, 81 T.C. 709, 720-723 (1983); Tipps v. Commissioner, [74 T.C. 458,] 468-471 [(1980)]; Hewlett-Packard Co. v. Commissioner, 67 T.C. 736, 747-750 (1977). Failure to manifest such intent has repeatedly resulted in taxpayer’s alleged election being rejected. E.g., Knight-Ridder Newspapers v. United States, 743 F.2d 781, 793-797 (11th Cir. 1984); Young v. Commissioner, 83 T.C. 831, 839-840 (1984); Estate of Skaggs v. Commissioner, [75 T.C. 191,] 205-208 [(1980), affd. per curiam 672 F.2d 756 (9th Cir. 1982)]; Valdes v. Commissioner, 60 T.C. 910, 913-915 (1973). Park Broadcasting is not to the contrary. The taxpayer in Park Broadcasting affirmatively stated its election on an amended return filed as soon as practicable after the election was permitted by a key change in Federal regula tions that occurred after the taxpayer had filed its original return. Petitioners also rely on Dougherty v. Commissioner, 60 T.C. 917 (1973), but Dougherty also involved a change" }, { "docid": "18142974", "title": "", "text": "Internal Revenue Code and have found that, absent a formal election, a submitted return and its attached schedules must evidence an affirmative intent on taxpayer’s part to make the required election and be bound thereby. Failure to manifest such intent has repeatedly resulted in taxpayer’s alleged election being rejected.” * * * [Fischer Indus., Inc. v. Commissioner, 87 T.C. at 122 (quoting Atl. Veneer Corp. v. Commissioner, 85 T.C. 1075, 1082-1083 (1985), aff’d, 812 F.2d 158 (4th Cir. 1987)); citations omitted.] In that case, the Court noted that an election can, in some situations be made on an amended return, stating that “if the circumstances necessitating an election arise after the filing of an original return, [the election can be made] as soon as practicable on an amended return.” Id. In the case before us, the purported election does not appear on a return but on the petition filed in this Court. If we were to apply the standard from Fischer in this case, we would ask whether the Bedrosians’ intent to elect out of TEFRA appeared on either the original petition filed in this case or “as soon as practicable on an amended” petition. Again, no such intent appears on the original petition. The Bedrosians first raised the notion of an election under section 6223(e) at least 33 months after they became aware of the FPAA. In the interim, Stone Canyon and the Bedrosians had lost jurisdictional arguments in both this Court and in the Court of Appeals for the Ninth Circuit. This was not “as soon as practicable”; this was with the benefit of hindsight. And an attempt to benefit from hindsight weighs against a finding of substantial compliance. Taylor v. Commissioner, 67 T.C. 1071, 1077-1078 (1977). Even if we look past the lack of intent, there is a lack of substantial compliance in the manner the election was made. The proposed report cites various cases that found substantial compliance where a taxpayer made a footfault in making an election. Such footfaults include making the election with the wrong IRS office, Hewlett-Packard Co. v. Commissioner, 67 T.C. 736," }, { "docid": "18142975", "title": "", "text": "TEFRA appeared on either the original petition filed in this case or “as soon as practicable on an amended” petition. Again, no such intent appears on the original petition. The Bedrosians first raised the notion of an election under section 6223(e) at least 33 months after they became aware of the FPAA. In the interim, Stone Canyon and the Bedrosians had lost jurisdictional arguments in both this Court and in the Court of Appeals for the Ninth Circuit. This was not “as soon as practicable”; this was with the benefit of hindsight. And an attempt to benefit from hindsight weighs against a finding of substantial compliance. Taylor v. Commissioner, 67 T.C. 1071, 1077-1078 (1977). Even if we look past the lack of intent, there is a lack of substantial compliance in the manner the election was made. The proposed report cites various cases that found substantial compliance where a taxpayer made a footfault in making an election. Such footfaults include making the election with the wrong IRS office, Hewlett-Packard Co. v. Commissioner, 67 T.C. 736, 748 (1977), omitting information, Sperapani v. Commissioner, 42 T.C. 308, 330-333 (1964), or making an untimely election, Estate of Chamberlain v. Commissioner, T.C. Memo. 1999-181, aff’d, 9 Fed. Appx. 713 (9th Cir. 2001). In the various examples of substantial compliance cited in the proposed report, however, the taxpayers made isolated footfaults. A taxpayer may well have intended to make an election, but as a result of an error or omission the taxpayer did not fully comply with the requirements to make an election. In such a situation a taxpayer might be deemed to have substantially complied. But aggregating footfaults eventually moves away from compliance, beyond substantial compliance, and all the way to noncompliance. The Bedrosians did not submit the supposed election to the proper IRS office, did not include the necessary information, and did not make an election in the time allowed. This cannot be said to be substantial compliance. The proposed report concludes that “[flailing to treat the petition as an election where a reasonable fix can be made under the circumstances would lead" }, { "docid": "18142966", "title": "", "text": "this hurdle is likewise met. In such a situation, a taxpayer has the same options as under section 6223(e)(2), but the manner of electing is reversed. Specifically, if a partner makes a timely election, the partner may opt out of the TEFRA proceeding by having his items converted to nonpartnership items. Sec. 6223(e)(3)(B). In the absence of an election, however, the partner remains bound by the TEFRA proceeding. Sec. 6223(e)(3) (“the partner shall be a party to the proceeding unless such partner elects”). The question for the Court is whether the Bedrosians made the election. The proposed report finds that such an election was made under the doctrine of substantial compliance; we conclude otherwise as a matter of law. We give due regard to the findings of fact in the proposed report, see Rule 183(d), and indeed, we take no issue with those findings of fact. It is in the application of the law to those facts where we find error. To opt out of the TEFRA proceeding under section 6223(e), the electing partner must make an election as follows: (2) Time and manner of making election. The election shall be made by filing a statement with the Internal Revenue Service office mailing the notice regarding the proceeding within 45 days after the date on which that notice was mailed. (3) Contents of statement. The statement shall— (i) Be clearly identified as an election under section 6223(e)(2) or (3), (ii) Specify the election being made (that is, application of final partnership administrative adjustment, court decision, consistent settlement agreement, or nonpartnership item treatment), (iii) Identify the partner making the election and the partnership by name, address, and taxpayer identification number, (iv) Specify the partnership taxable year to which the election relates, and (v) Be signed by the partner making the election. [Sec. 301.6223(e)-2T, Temporary Proced. & Admin. Regs., 52 Fed. Reg. 6785 (Mar. 5, 1987).] The Bedrosians focus on their petition as their purported election under this regulation. The petition, however, did not satisfy the criteria for making an election under section 6223(e)(3). We begin with the fact that the petition" }, { "docid": "18142965", "title": "", "text": "partnership items converted to nonpartnership items under section 6223(e)(3). Like section 6223(e)(2), discussed above, section 6223(e)(3) applies when the IRS issues an NBAP or an FPAA outside of the time-frame required by section 6223(d). In this case, the IRS issued the NBAP with respect to Stone Canyon less than 120 days before the FPAA, so this first hurdle is met. In contrast to section 6223(e)(2), section 6223(e)(3) applies only if the TEFRA proceeding is ongoing at the time the IRS issues the notice. Again, as discussed above, the notices were mailed to the partners 62 days apart. When the NBAP was mailed, the FPAA had not yet been issued, so the period within which to petition for a review of the FPAA had not yet begun to run. And because the FPAA was mailed simultaneously to the TMP and to the Bedrosians, at the time the FPAA was mailed the period within which to file a petition from that FPAA had just begun. It certainly had not lapsed. Thus, the TEFRA proceeding was ongoing, so this hurdle is likewise met. In such a situation, a taxpayer has the same options as under section 6223(e)(2), but the manner of electing is reversed. Specifically, if a partner makes a timely election, the partner may opt out of the TEFRA proceeding by having his items converted to nonpartnership items. Sec. 6223(e)(3)(B). In the absence of an election, however, the partner remains bound by the TEFRA proceeding. Sec. 6223(e)(3) (“the partner shall be a party to the proceeding unless such partner elects”). The question for the Court is whether the Bedrosians made the election. The proposed report finds that such an election was made under the doctrine of substantial compliance; we conclude otherwise as a matter of law. We give due regard to the findings of fact in the proposed report, see Rule 183(d), and indeed, we take no issue with those findings of fact. It is in the application of the law to those facts where we find error. To opt out of the TEFRA proceeding under section 6223(e), the electing partner must" }, { "docid": "18143002", "title": "", "text": "T.C. 533 (2000). Stone Canyon’s Form 1065 for 1999 was filed on October 16, 2000. The period described in sec. 6229(a) would have expired on October 16, 2003. It appears that Revenue Agent Smyth reviewed the Bedrosians’ Forms 1040 for 2001 and 2002 for the limited purpose of making carryover adjustments arising from the adjustments for 1999 and 2000. If, at the time the petition was filed, respondent believed that Stone Canyon was subject to the TEFRA procedures, he should not have waited almost a year to file a motion to dismiss for lack of jurisdiction. See Internal Revenue Manual (IRM) pt. 35.3.2.1(3) (Sept. 21, 2012) (“A jurisdictional defect should be raised in a motion to dismiss for lack of jurisdiction as soon as the jurisdictional defect is discovered and any evidence needed to support such a motion is acquired. Field attorneys should avoid waiting to raise such defects in the answer, stipulation or motion under T.C. Rule 122 in order to ensure a prompt resolution of the case and to avoid unnecessary work for the Tax Court.”). A similar provision was in effect at the time the petition was filed. At that time neither party raised, nor did we consider, the possible application of sec. 6223(e) or 6231(g). Notably, it appears that the Bedrosians’ position regarding sec. 6231(g) would, in effect, undermine their statute of limitations argument. The effect of sec. 6231(g)(2) is to render the whole of the TEFRA provisions inapplicable to the partnership at issue. As a result, sec. 6229(b)(3), the linchpin of the Bedrosians’ statute of limitations argument, would be inapplicable. Indeed, the unidentified partner rule may well apply to the Bedrosians in this case. The Bedrosians are not identified on the face of the partnership return, and there is nothing in the record to indicate that their identifying information was provided in accordance with the regulations under sec. 6223. See Taylor v. Commissioner, T.C. Memo. 1992-219. However, we need not decide this question. The current regulation clarifies that the FPAA is the operative notice, but that regulation became effective on October 4, 2001, for partnership" }, { "docid": "18142953", "title": "", "text": "the IRS issued an affected items notice of deficiency to the Bedrosians (2006 notice). On November 30, 2006, the Bedrosians filed a timely petition in response to the 2006 notice. We held that we lacked jurisdiction over that case, however, because the deficiencies had been paid and assessed before the issuance of the 2006 notice. Bedrosian v. Commissioner, T.C. Memo. 2007-376 (2006 notice case), aff’d, 358 Fed. Appx. 868 (9th Cir. 2009). In other words, there was no deficiency. On May 1, 2007, the LLC, as the TMP of Stone Canyon, filed an untimely petition in response to the FPAA. Both parties filed motions to dismiss, with the TMP alleging that the FPAA was invalid because it was not mailed to the proper address and respondent alleging that the petition was untimely. We granted respondent’s motion to dismiss the FPAA case for lack of jurisdiction. We held that the FPAA was valid and that the petition was untimely. Stone Canyon Partners v. Commissioner, T.C. Memo. 2007-377 (FPAA case), aff’d sub nom. Bedrosian v. Commissioner, 358 Fed. Appx. 868 (9th Cir. 2009). The respective petitioners appealed the orders of dismissal for lack of jurisdiction in the 2006 notice case and the FPAA case and attempted to appeal the order in this 2005 notice case to the Court of Appeals for the Ninth Circuit. The Court of Appeals affirmed the dismissals in the 2006 notice case and the FPAA case. Bedrosian v. Commissioner, 358 Fed. Appx. at 869-871. To the extent the Bedrosians sought to appeal the holding in this case, the Court of Appeals dismissed the appeal for lack of jurisdiction on the ground that we had dismissed this case only in part and that there was no final judgment from which an appeal could properly be taken. Id. at 870. Notwithstanding that it dismissed the appeal, however, the Court of Appeals remarked about our jurisdiction in this case: “But both parties concede that the 2005 notice of deficiency was invalid because it was issued while partnership proceedings were pending. No assessment could possibly deprive the Tax Court of jurisdiction over" }, { "docid": "18142952", "title": "", "text": "year after the Bedrosians had filed their petition, respondent moved to dismiss this case for lack of jurisdiction on the ground that the 2005 notice was invalid in that it consisted entirely of adjustments to partnership items or affected items. Respondent now claims that he has “consistently taken the position that * * * [the] Partnership is subject to the TEFRA provisions of the Code.” We held that we do not have jurisdiction over the adjustments to partnership items or affected items that were listed in the notice of deficiency but that we do have jurisdiction over the disallowance of the deductions for transaction fees for 2000. Bedrosian v. Commissioner, T.C. Memo. 2007—375 (2005 notice case). The parties agreed that all of the adjustments for 1999 were partnership items or affected items. See id., slip op. at 7. We granted respondent’s motion to dismiss insofar as it related to the adjustments for 1999 and the NOL carryover for 2000 and denied the motion insofar as it related to the transaction fees. On September 5, 2006, the IRS issued an affected items notice of deficiency to the Bedrosians (2006 notice). On November 30, 2006, the Bedrosians filed a timely petition in response to the 2006 notice. We held that we lacked jurisdiction over that case, however, because the deficiencies had been paid and assessed before the issuance of the 2006 notice. Bedrosian v. Commissioner, T.C. Memo. 2007-376 (2006 notice case), aff’d, 358 Fed. Appx. 868 (9th Cir. 2009). In other words, there was no deficiency. On May 1, 2007, the LLC, as the TMP of Stone Canyon, filed an untimely petition in response to the FPAA. Both parties filed motions to dismiss, with the TMP alleging that the FPAA was invalid because it was not mailed to the proper address and respondent alleging that the petition was untimely. We granted respondent’s motion to dismiss the FPAA case for lack of jurisdiction. We held that the FPAA was valid and that the petition was untimely. Stone Canyon Partners v. Commissioner, T.C. Memo. 2007-377 (FPAA case), aff’d sub nom. Bedrosian v. Commissioner, 358" }, { "docid": "18142972", "title": "", "text": "analysis. The Bedrosians did not have the affirmative intent to make the required election; they had not received the FPAA or the notice under section 6223(e). Presumably they did not even know that such an election was available to them at the time. Indeed, elsewhere the proposed report acknowledges as much, stating that “petitioners raise a new theory [in their amended petition] that there was a constructive or deemed election converting all partnership items for 1999 and 2000 into nonpartnership items.” If an election under section 6223(e) was a new theory in 2010 when the amended petition was filed, then it could not have been the Bedrosians’ “affirmative intent” in 2005 when they filed their initial petition. The proposed report thoroughly strings together examples of substantial compliance, yet it does not address the common thread of intent. In the cited cases, the people who successfully invoked the doctrine of substantial compliance intended to make an election. Indeed, the first such case cited by the proposed report is Samueli v. Commissioner, 132 T.C. 336, which involved a failed attempt to invoke substantial compliance, but even there the taxpayers were able to show intent. That TEFRA-related case involved a situation in which the taxpayers alleged that, when they filed an amended individual income tax return, they really intended to file an administrative adjustment request under section 6227. Their argument failed because “[t]he requisite intent needed to be present contemporaneously with the filing of the partner AAR, not later when petitioners believed it to be more advantageous to have had that intent initially.” Id. at 345-346. Likewise here; the intent to make an election under section 6223(e) needed to be present at the time the purported election was made, not 1,761 days later and with the benefit of hindsight. Another case cited in the proposed report also focused on intent, but phrased the standard a bit more expansively. In Fischer Indus., Inc., the Court articulated the standard as one that is governed by intent, stating: “We have examined the cases as to what constitutes a statement of election under various provisions of the" }, { "docid": "18143003", "title": "", "text": "the Tax Court.”). A similar provision was in effect at the time the petition was filed. At that time neither party raised, nor did we consider, the possible application of sec. 6223(e) or 6231(g). Notably, it appears that the Bedrosians’ position regarding sec. 6231(g) would, in effect, undermine their statute of limitations argument. The effect of sec. 6231(g)(2) is to render the whole of the TEFRA provisions inapplicable to the partnership at issue. As a result, sec. 6229(b)(3), the linchpin of the Bedrosians’ statute of limitations argument, would be inapplicable. Indeed, the unidentified partner rule may well apply to the Bedrosians in this case. The Bedrosians are not identified on the face of the partnership return, and there is nothing in the record to indicate that their identifying information was provided in accordance with the regulations under sec. 6223. See Taylor v. Commissioner, T.C. Memo. 1992-219. However, we need not decide this question. The current regulation clarifies that the FPAA is the operative notice, but that regulation became effective on October 4, 2001, for partnership years beginning after that date. See sec. 301.6223(e)-2(e), Proced. & Admin. Regs. A temporary regulation was effective for the partnership years at issue, and the IRS took the same position even before the final regulations. Field Service Advisory 1993, 1993 WL 1469668. The 33 months is calculated from the time the petition was filed in this Court with respect to the Stone Canyon FPAA until the date the amended petition was lodged. Halpern, J., concurring: I have joined the majority’s opinion and write separately only to address Judge Vasquez’ complaint that we have denied the Bedrosians their day in court. I do not believe that to be the case. Judge Vasquez is the author of our Memorandum Opinion Stone Canyon Partners v. Commissioner, T.C. Memo. 2007-377, 2007 WL 4526512, aff’d, 358 Fed. Appx. 868 (9th Cir.2009). In that case, we disposed of two competing motions to dismiss for lack of jurisdiction. One was made by JOB Stone Canyon Investments LLC (LLC), as tax matters partner (TMP) of Stone Canyon Partners. The grounds for that motion" }, { "docid": "18142964", "title": "", "text": "least one year after that partner is properly identified, which may be longer than the periods of limitations of other partners. Likewise, because section 6229 operates only as a minimum period of limitations, if one partner had a substantial omission of income on his personal return, then that partner’s period of limitations would be held open beyond those of the other partners. See generally Rhone-Poulenc Surfactants & Specialties, L.P. v. Commissioner, 114 T.C. at 533. Moreover, section 6226(d)(1) explicitly provides that the time and place for a partner to raise an affirmative defense relating to the period of limitations is in the TEFRA proceeding. Treating the expiration of the period of limitations as an automatic conversion would conflict with this provision. The rule the Bedrosians advocate would simply be unworkable. In short, we agree with the proposed report’s discussion of section 6229(e)(2) both for the reasons stated in it and those stated above. B. Section 6223(e)(3) — Proceedings Still Going On The Bedrosians’ alternative argument is that they made a timely election to have their partnership items converted to nonpartnership items under section 6223(e)(3). Like section 6223(e)(2), discussed above, section 6223(e)(3) applies when the IRS issues an NBAP or an FPAA outside of the time-frame required by section 6223(d). In this case, the IRS issued the NBAP with respect to Stone Canyon less than 120 days before the FPAA, so this first hurdle is met. In contrast to section 6223(e)(2), section 6223(e)(3) applies only if the TEFRA proceeding is ongoing at the time the IRS issues the notice. Again, as discussed above, the notices were mailed to the partners 62 days apart. When the NBAP was mailed, the FPAA had not yet been issued, so the period within which to petition for a review of the FPAA had not yet begun to run. And because the FPAA was mailed simultaneously to the TMP and to the Bedrosians, at the time the FPAA was mailed the period within which to file a petition from that FPAA had just begun. It certainly had not lapsed. Thus, the TEFRA proceeding was ongoing, so" }, { "docid": "2568875", "title": "", "text": "taxpayers and the government. It then reasons that those purposes are met when it calculates its depreciation properly under the Guideline Class Life System, reports the amount accurately on its tax return, and maintains its books and records adequately to allow an audit. Any other election requirements are merely “procedural details,” unnecessary to the legislative purposes. In support of this argument, Taxpayer cites a number of Tax Court decisions in which taxpayers had failed to meet the literal requirements for an election but the courts held that they had substantially complied. American Air Filter v. Commissioner, 81 T.C. 709 (1983); Tipps v. Commissioner, 74 T.C. 458 (1980); Columbia Iron & Metal v. Commissioner, 61 T.C. 5 (1973); Hewlett-Packard v. Commissioner, 67 T.C. 736 (1977); Sperapani v. Commissioner, 42 T.C. 308 (1964); O’Dowd v. Commissioner, 35 T.C.M. (CCU) 754 (1976), aff'd, 595 F.2d 262 (5th Cir.1979). The courts looked to see whether specific requirements related to the “essence” of the statutory and regulatory scheme. See Tipps, supra, 74 T.C. at 468; Valdes v. Commissioner, 60 T.C. 910, 913 (1973). If not, then literal compliance was not necessary for a valid election. The court in Hewlett-Packard listed a number of factors to be considered: In ascertaining whether a particular provision of a regulation stating how an election is to be made must be literally complied with, it is necessary to examine the purpose, its relationship to other provisions, the terms of the underlying statute, and the consequences of failure to comply with the provision in question. * * * 67 T.C. at 749, quoting Valdes, supra, 60 T.C. at 913. Applying that same analysis here, we find that the Taxpayer has overlooked certain essential purposes of I.R.C. § 167(m) and Treas.Reg. § 1.167(a)-12. First, the Congress plainly intended that each taxpayer’s election be binding. An election to come under the class life system for a taxable year may not be changed or revoked. See S.Rep. No. 92-437, 92nd Cong., 1st Sess. 49, H.R.Rep. No. 92-533, 92nd Cong., 1st Sess. 33, U.S.Code Cong. & Ad.News 1971, p. 1825. This policy is furthered by" }, { "docid": "18142976", "title": "", "text": "748 (1977), omitting information, Sperapani v. Commissioner, 42 T.C. 308, 330-333 (1964), or making an untimely election, Estate of Chamberlain v. Commissioner, T.C. Memo. 1999-181, aff’d, 9 Fed. Appx. 713 (9th Cir. 2001). In the various examples of substantial compliance cited in the proposed report, however, the taxpayers made isolated footfaults. A taxpayer may well have intended to make an election, but as a result of an error or omission the taxpayer did not fully comply with the requirements to make an election. In such a situation a taxpayer might be deemed to have substantially complied. But aggregating footfaults eventually moves away from compliance, beyond substantial compliance, and all the way to noncompliance. The Bedrosians did not submit the supposed election to the proper IRS office, did not include the necessary information, and did not make an election in the time allowed. This cannot be said to be substantial compliance. The proposed report concludes that “[flailing to treat the petition as an election where a reasonable fix can be made under the circumstances would lead to a harsh result which is well out of proportion to the omission. Without such a fix, petitioners would be denied their day in Court.” Proposed report at 18 (citations omitted). The Bedrosians’ day in court to challenge partnership items was available to them by filing a timely petition from the FPAA. If they did not receive notice, it was by operation of the last known address rule as implemented through TEFRA. While the result might be unfortunate, this is the way the TEFRA rules operate in this case. And the Bedrosians have already challenged whether the TEFRA notice was effective and lost, in both this Court and the Court of Appeals for the Ninth Circuit. It is not for us to create a remedy where none exists. In sum, we conclude that the Bedrosians did not intend to make an election under section 6223(e)(3). Even if we look past their lack of intent, we conclude that their petition did not substantially comply with the requirements to make such an election. In so concluding, we" }, { "docid": "18143000", "title": "", "text": "that they now advance to support their contention that this case should be governed by individual deficiency procedures. For whatever reason, the Bedrosians abandoned this theory and argued the last known address issue, which was rejected both by this Court and by the Court of Appeals for the Ninth Circuit. They cannot now collaterally attack what has become a final decision. Conclusion The Bedrosians cannot use this deficiency proceeding to make a collateral attack because of the final decision in Stone Canyon Partners or the opinion of the Court of Appeals in their prior appeal in this case. Their arguments regarding sections 6223(e) and 6231(g) amount to just that. Moreover, their arguments fail on the merits. The Bedrosians’ partnership items did not automatically convert under section 6231(e)(2), and they neither made an election under section 6223(e)(3) nor substantially complied with the procedures for making such an election. Regarding section 6231(g)(2), the IRS determined that TEFRA applied to Stone Canyon, as evidenced by the Stone Canyon FPAA. If the IRS had determined that TEFRA did not apply to Stone Canyon, that determination would not have been reasonable because Stone Canyon had passthrough partners, which preclude it from falling within the small partnership exception. To reflect the foregoing, An appropriate order will be issued. Reviewed by the Court. Halpern, Gale, Holmes, Kerrigan, Lauber, and Nega, JJ., agree with this opinion of the Court. Kroupa, J., concurs in the result only. Gustafson and Morrison, JJ., did not participate in the consideration of this opinion. All section references are to the Internal Revenue Code (Code) in effect for the years at issue, and all Rule references are to the Tax Court Rules of Practice and Procedure, unless otherwise indicated. TEFRA is shorthand for the Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. No. 97-248, sec. 1(a), 96 Stat. at 324. Notwithstanding being included on the Form 2848, it appears from the record that Mr. Hodge did not have any involvement in the audit. See sec. 6229(b)(3); Ginsburg v. Commissioner, 127 T.C. 75 (2006). See Rhone-Poulenc Surfactants & Specialties L.P. v. Commissioner, 114" }, { "docid": "18142969", "title": "", "text": "original petition filed in this case did not indicate that the Bedrosians intended to make an election of any kind; this position was first raised by the amended petition, lodged 1,761 days after the IRS mailed the FPAA, which stated that the Bedrosians should “be deemed to have elected that the partnership items of Stone Canyon Partners be converted to nonpartnership items”. Moreover, because the Bedrosians did not know of their eligibility to make an election and did not contemplate that they were making such an election, it is unsurprising that the original petition did not specify the nature of the election that was being made (in this case, nonpartnership item treatment). Some of the requirements for making an election under section 6223(e) might, arguably, be satisfied by the petition. It identified the partner and the partnership, although it did not contain the partnership address or taxpayer identification number. The petition mentioned the years at issue in the deficiency case, which are the same years that would have been the subject of an election. And although not signed by the partner making the election, the petition was signed by counsel for that partner. The Bedrosians argue that it would be “untenable” to hold them to the requirements of making a proper election because they had not received actual notice within the 45-day period within which to make such an election. This amounts to rearguing the Stone Canyon Partners case that we already decided and that the Court of Appeals for the Ninth Circuit already affirmed. Stone Canyon Partners v. Commissioner, T.C. Memo. 2007-377. Actual notice is not the standard; the standard is whether the IRS met the requirements for sending proper notice. We already held that it did, and the Court of Appeals already affirmed our decision in that case. Recognizing that the Bedrosians did not make a proper election, the proposed report turns to the doctrine of substantial compliance, correctly setting forth the standard. The proposed report states: The substantial compliance doctrine is a narrow equitable doctrine that courts use to avoid taxpayer hardship if the taxpayer establishes that" }, { "docid": "18142970", "title": "", "text": "although not signed by the partner making the election, the petition was signed by counsel for that partner. The Bedrosians argue that it would be “untenable” to hold them to the requirements of making a proper election because they had not received actual notice within the 45-day period within which to make such an election. This amounts to rearguing the Stone Canyon Partners case that we already decided and that the Court of Appeals for the Ninth Circuit already affirmed. Stone Canyon Partners v. Commissioner, T.C. Memo. 2007-377. Actual notice is not the standard; the standard is whether the IRS met the requirements for sending proper notice. We already held that it did, and the Court of Appeals already affirmed our decision in that case. Recognizing that the Bedrosians did not make a proper election, the proposed report turns to the doctrine of substantial compliance, correctly setting forth the standard. The proposed report states: The substantial compliance doctrine is a narrow equitable doctrine that courts use to avoid taxpayer hardship if the taxpayer establishes that he or she intended to comply with a provision, did everything reasonably possible to comply with the provision, but did not comply with the provision because of a failure to meet the provision’s specific requirements. [Proposed report at 13-14 (citing Samueli v. Commissioner, 132 T.C. 336, 345 (2009), Sawyer v. Cnty. of Sonoma, 719 F.2d 1001, 1007-1008 (9th Cir. 1983), and Fischer Indus., Inc. v. Commissioner, 87 T.C. 116, 122 (1986), aff’d, 843 F.2d 224 (6th Cir.1988)).] The proposed report correctly notes that the manner in which the election is made is regulatory, not statutory, and thus strict compliance is not required. Id. at 14-15. In doing so, however, the proposed report states that “the Court has found that the documents submitted in lieu of a formal election must ‘evidence an affirmative intent on taxpayer’s part to make the required election and be bound thereby.’” Id. at 17 (quoting Fischer Indus., Inc. & Subs. v. Commissioner, 87 T.C. at 122). But the proposed report does not address this affirmative intent requirement in its substantial compliance" }, { "docid": "18142971", "title": "", "text": "he or she intended to comply with a provision, did everything reasonably possible to comply with the provision, but did not comply with the provision because of a failure to meet the provision’s specific requirements. [Proposed report at 13-14 (citing Samueli v. Commissioner, 132 T.C. 336, 345 (2009), Sawyer v. Cnty. of Sonoma, 719 F.2d 1001, 1007-1008 (9th Cir. 1983), and Fischer Indus., Inc. v. Commissioner, 87 T.C. 116, 122 (1986), aff’d, 843 F.2d 224 (6th Cir.1988)).] The proposed report correctly notes that the manner in which the election is made is regulatory, not statutory, and thus strict compliance is not required. Id. at 14-15. In doing so, however, the proposed report states that “the Court has found that the documents submitted in lieu of a formal election must ‘evidence an affirmative intent on taxpayer’s part to make the required election and be bound thereby.’” Id. at 17 (quoting Fischer Indus., Inc. & Subs. v. Commissioner, 87 T.C. at 122). But the proposed report does not address this affirmative intent requirement in its substantial compliance analysis. The Bedrosians did not have the affirmative intent to make the required election; they had not received the FPAA or the notice under section 6223(e). Presumably they did not even know that such an election was available to them at the time. Indeed, elsewhere the proposed report acknowledges as much, stating that “petitioners raise a new theory [in their amended petition] that there was a constructive or deemed election converting all partnership items for 1999 and 2000 into nonpartnership items.” If an election under section 6223(e) was a new theory in 2010 when the amended petition was filed, then it could not have been the Bedrosians’ “affirmative intent” in 2005 when they filed their initial petition. The proposed report thoroughly strings together examples of substantial compliance, yet it does not address the common thread of intent. In the cited cases, the people who successfully invoked the doctrine of substantial compliance intended to make an election. Indeed, the first such case cited by the proposed report is Samueli v. Commissioner, 132 T.C. 336, which involved" }, { "docid": "2568878", "title": "", "text": "class. Alternatively, if the taxpayer has not informed the Commissioner of an election, the Commissioner can be sure that the system does not apply and can better assess the taxpayer’s analysis of facts and circumstances. In sum, the elaborate election provisions of section 1.167(a)-12 are designed to inform the Commissioner that an election has been made and which asset classes it affects. We are not saying that each and every requirement is critical, but the goal of clearly informing the Commissioner of an election is essential. In all but one of the “substantial compliance” eases cited by Knight-Ridder, the taxpayer’s return indicated that an election was being made even though the taxpayer had failed to comply with a minor procedural detail. For example, in Tipps, the taxpayer clearly indicated on its form that it was electing to employ accelerated depreciation pursuant to I.R.C. § 167(k). It specified the election and the property to which it would apply, failing only to supply certain “per unit information.” The court held that “Even if the per-unit information had been filed exactly as [the Commission er] desired, [he] would not have had any additional information identifying or describing the property to which the elections applied or specifying that the elections were being made.” 74 T.C. at 468. Since the taxpayer had effectively reported that it was making an election, the court held that it had substantially complied with the election requirements. Id. Similarly, in Columbia Iron and Metal, the taxpayer indicated on its return that it was electing to take a charitable deduction; its failure to attach corporate minutes authorizing the charitable contributions did not prevent an effective election. 61 T.C. at 6-7, 9. Finally, in Hewlett-Packard, O’Dowd, and Sperapani, the taxpayer’s failure to meet certain procedural requirements did not prevent substantial compliance with election requirements, where the taxpayer in each case had clearly notified the Commissioner of its intent to make an election. See Hewlett-Packard, supra, 67 T.C. at 747-49 (taxpayer filed information specified by regulations but attached it to wrong part of the return and mailed it to wrong office of Internal" } ]

[ { "docid": "17943114", "title": "", "text": "express or implied, which creates a private right of action for violations of an individual’s right to free speech. Pendrell v. Chatham College, 386 F.Supp. 341, 344 (W.D.Pa.1974). We have found no Pennsylvania case law or statute which implies a private right of action under the state Constitution. Since Plaintiff would have no greater rights under Article I, § 7 than under the First Amendment, charging a jury on both would only prove confusing and redundant. We can glean no other basis to support Plaintiff’s claim under Count V from either the Complaint, Plaintiff’s brief or Pennsylvania law. Thus, we will also dismiss Count V. § 1985(3) In the jurisdictional section of her Complaint, Plaintiff mentions § 1985(3). Although she does not again mention that section specifically, she does refer to a conspiracy to deprive her of “the equal protection and privileges of the law” in Count IV. We presume this count is based on § 1985(3). To state a claim under this section, Plaintiff must plead 1) the existence of a conspiracy; 2) to deprive her of the equal protection of the law; 3) which conspiracy was motivated by racial or other class-based invidiously discriminatory animus; 4) that Defendants committed an overt act in furtherance of the conspiracy and; 5) that Plaintiff was injured in her person or property and deprived of rights and privileges guaranteed by the constitution. Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971); Sellers v. Local 1598, Dist. Council 88, American Fed’n of State, County and Mun. Employees, 600 F.Supp. 1205, 1211 (E.D.Pa.1984); Armstrong v. School Dist. of Philadelphia, 597 F.Supp. 1309, 1313 (E.D.Pa.1984). Even reading the allegations of Plaintiff’s Complaint liberally, we cannot discern facts from which we could infer any class-based invidiously discriminatory animus. Jennings v. Shuman, 567 F.2d 1213, 1221 (3d Cir.1977). At best, Plaintiff has alleged facts supporting a conspiracy against her based on an opposing view which she and others expressed about a school board policy decision. While Plaintiff and the others espousing her viewpoint may constitute a class, the Supreme Court has" } ]

[ { "docid": "18158009", "title": "", "text": "withhold exculpatory evidence from Plaintiff in order to deny him a fair trial and obtain a conviction, so as to case [sic] him to spend money, face jail time, and stop or punish him from his protected activities.” (Pl.’s Compl. ¶43). Plaintiff further alleges that Rauch destroyed evidence in furtherance of the conspiracy. Id. at ¶ 44. However, as to damages, Plaintiff claims that “[a]s a direct result of the conspiracy the Plaintiff was unable to present defense, impeach Commonwealth witness, present evidence favorable to him and which corroborated his claims, have a fair trial process, effective assistance of counsel, a meaningful or adequate appeal process to review his conviction, and remains convicted off [sic] harassment.” Id. at ¶ 45. These damages are a result of the May 1999 harassment prosecution and do not involve Rauch. The charges brought by Rauch were dismissed, id. at ¶ 20, and Plaintiff does not claim that he suffered damages from the alleged conspiracy between Rauch and the other Defendants. Therefore, Plaintiff does not state a claim for civil conspiracy against Defendant Rauch, and this aspect of Count IV will be dismissed. Regarding Count IV against Defendant Rauch, Plaintiffs claims of abuse of process and civil conspiracy will be dismissed. Plaintiffs claim of malicious prosecution against Defendant Rauch under Count IV will not be dismissed. E, Count V: Pennsylvania Constitutional Claims and Conspiracy In Count V, Plaintiff claims his rights were violated under the Pennsylvania Constitution. However, the Supreme Court of Pennsylvania has not ruled on the issue of whether there is a private cause of action for damages under the state constitution, and the federal courts in this 'Circuit that have considered the issue have concluded that there is no such right under the Pennsylvania Constitution. Kelleher v. City of Reading, C.A. No. 01-3386, 2001 WL 1132401, 2001 U.S. Dist. LEXIS 14958, at *9-10 (E.D.Pa. Sept. 24, 2001) (citing Dooley v. City of Philadelphia, 153 F.Supp.2d 628, 663 (E.D.Pa.2001); Sabatini v. Reinstein, C.A. No. 99-2393, 1999 WL 636667, 1999 U.S. Dist. LEXIS 12820, at *6 (E.D.Pa. Aug. 20, 1999); Holder v. City of" }, { "docid": "18157987", "title": "", "text": "comports with decisions of other courts of appeals holding that individuals are not hable under Titles I and II of the ADA, which prohibit’discrimination by employers and public entities respectively” (citing Garcia v. SUNY Health Sciences Ctr., 280 F.3d 98, 107 (2d Cir.2001); Butler v. City of Prairie Village, 172 F.3d 736, 744 (10th Cir.1999); and quoting Walker v. Snyder, 213 F.3d 344, 346 (7th Cir.2000) (“the ADA addresses its rules to employers, places of public accommodation, and other organizations, not to the employees or managers of those organizations”)). Retaliation under the ADA , the claim at issue, falls under Title V, which the Third Circuit has not addressed as to individual liability. However, in considering the issue of individual liability under Title VII, the Third Circuit concluded that “Congress did not intend to hold individual employees hable under Title VII.” Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1078 (3d Cir.1996) (en banc), cert. denied, 521 U.S. 1129, 117 S.Ct. 2532, 138 L.Ed.2d 1031 (1997)). The Third Circuit also has stated that “the ADA, ADEA, and Title VII ah serve the same purpose— to prohibit discrimination in employment against members of certain classes. Therefore, it follows that the methods and manner of proof under one statute should inform the standards under the others as well.” Newman v. GHS Osteopathic, Inc., Parkview Hosp. Div., 60 F.3d 153, 157 (3d Cir.1995). The “consensus view among district courts in this circuit is that individuallia-bility cannot be imposed under the ADA.” Douris v. County of Bucks, 2001 WL 767579, 2001 U.S. Dist. LEXIS 9282, at *15 (citations omitted); see, e.g., Schumacher v. Souderton Area School District, C.A. No. 99-1515, 2000 WL 72047, at *3 (E.D.Pa. Jan.21, 2000); Metzgar v. Lehigh Valley Housing Authority, C.A. No. 98-3304, 1999 WL 310639, at *4 (E.D.Pa. July 27, 1999); Fullman v. Philadelphia Int’l Airport, 49 F.Supp.2d 434, 441 (E.D.Pa.1999); Brannaka v. Bergey’s, Inc., C.A, No. 97-6921, 1998 WL 195660, at *1-2 (E.D.Pa. Mar.30, 1998). “ /Courts of Appeals that have directly addressed the issue of individual liability under the ADA have concluded that no" }, { "docid": "16112251", "title": "", "text": "L.Ed.2d 190 (1991). The Pennsylvania state courts that have applied a statute of limitations in cases involving section 8371 claims have reached conflicting conclusions. See Susich v. Prudential Prop. & Cas. Ins. Co., 35 Pa. D. & C.4th 178, 181-82 (1998) (applying a two-year period on ground that bad faith claims fall into both the “civil penalty” and tort categories); Trujillo v. State Farm Mut. Auto. Ins. Co., 54 Pa. D. & C.4th 241 (2001) (applying a six-year period on the ground that bad faith claims sound in both tort and contract); Mantia v. Northern Ins. Co. of New York, 39 Pa. D. & C.4th 71 (1998) (applying a six-year period on ground that bad faith claims embody elements of both tort and contract). Likewise, the federal courts in Pennsylvania that have considered the issue have divided between the two- and six-year possibilities. See Nelson v. State Farm Mut. Auto. Ins. Co., 988 F.Supp. 527 (E.D.Pa.1997); Fuel v. UNUM Life Ins. Co. of Am., No. 97-1062, 1998 WL 800336, 1998 U.S. Dist. LEXIS 18578 (E.D.Pa. Nov. 17, 1998); McCarthy v. Scottsdale Ins. Co., No. 99-978, 1999 WL 672642, 1999 U.S. Dist. LEXIS 12899 (E.D.Pa. Aug. 16, 1999); Mantakounis v. Aetna Cas. & Sur. Co., No. 98-4392, 1999 WL 600535, 1999 U.S. Dist. LEXIS 12214 (E.D.Pa. Aug. 10, 1999); Liberty Mut. Fire Ins. Co. v. Corry Indus., No. 97-172E, 2000 U.S. Dist. LEXIS 11735 (W.D.Pa. Mar. 30, 2000); Lochbaum v. United States Fid. & Guar. Co., 136 F.Supp.2d 386 (each applying a two-year period), and Woody v. State Farm Fire & Cas. Co., 965 F.Supp. 691 (E.D.Pa.1997); Miller v. Cincinnati Ins. Co., No. 97-CY-1223, 1997 U.S. Dist. LEXIS 23725 (E.D.Pa. July 9, 1997) (each applying a six-year period). The district court in this case relying on Lochbaum applied the two-year statute of limitations. The Lochbaum court determined that Pennsylvania’s bad faith statute sounded exclusively in tort and therefore concluded that if the Pennsylvania Supreme Court were presented with the issue, it would hold that the two-year statute of limitations applies. See Lochbaum, 136 F.Supp.2d at 390. We affirmed the judgment in" }, { "docid": "3556423", "title": "", "text": "not decided whether a private cause of action exists under Article 1, Section 7 of the Pennsylvania Constitution. Courts of this circuit that have considered the question have concluded that Article 1, Section 7 does not establish a private cause of action for damages. See Sabatini v. Reinstein, No. 99-2393, 1999 WL 636667, 1999 U.S. Dist. LEXIS 12820, at *6 (E.D.Pa. Aug. 18, 1999); Holder v. City of Allentown, No. 91-240, 1994 WL 236546, *3, 1994 U.S. Dist. LEXIS 7220, at *11 (E.D.Pa. May 19, 1994); Lees v. West Greene School Dist., 632 F.Supp. 1327, 1335 (W.D.Pa.1986); Pendrell v. Chatham College, 386 F.Supp. 341, 344 (W.D.Pa.1974); see also Chantilly Farms, Inc. v. West Pikeland Twp., No. 00-3903, 2001 WL 290645, *12, 2001 U.S. Dist. LEXIS 3328, at *39 (E.D.Pa. Mar. 23, 2001) (citations omitted). I agree with this line of cases and adopt its reasoning. Accordingly, I conclude that defendants are entitled to judgment as a matter of law on Dooley’s claim under the Pennsylvania Constitution. Pennsylvania Criminal Statute 18 Pa. C.S. § 4953 Plaintiff also brings a claim under 18 Pa.C.S. § 4953, which appears in the Pennsylvania Criminal Code and provides: § 4953 Retaliation against witness or victim (a) Offense defined. — A person commits an offense if he harms another by any unlawful act in retaliation for anything lawfully done in the capacity of witness or victim. (b) Grading. — The offense is a felony of the third degree if the retaliation is accomplished by any of the means specified in section 4592(1) through (5) (relating to intimidation of witnesses or victims). Otherwise the offense is a misdemeanor of the second degree. Despite the fact that § 4593 is unquestionably a criminal statute and contains no indicia of a private right of action, plaintiff maintains that she may bring a civil cause of action for damages under this statute. Plaintiffs argument deserves high marks for creativity, but low marks on legal merit. Plaintiff asserts that the Superior Court of Pennsylvania considered reading a civil remedy into a criminal statute in Alfred M. Lutheran Distribs. v. A.P. Weilersbacher," }, { "docid": "18158028", "title": "", "text": "or her official duties if forced to defend against § 1983 actions; (3) a post-trial decision in favor of the accused might result in a § 1983 action against the prosecutor for alleged errors or mistakes in judgment. 424 U.S. at 425-27. Plaintiff asserts that Defendants acted in an investigative or administrative ca- parity and therefore are entitled only to qualified immunity. (Pl.’s Resp. to Def.’s Mot. to Dismiss 3-6). When a prosecutor serves as an administrator rather than an officer of the court, he or she is only entitled to qualified immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). However, prosecutors are absolutely immune in § 1983 actions for their decisions to prosecute, and withholding exculpatory evidence is a quasi-judicial act protected by absolute immunity. Hull v. Mallon, C.A. No. 00-5698, 2001 WL 964109, 2001 U.S. Dist. LEXIS 12755, at *5 (E.D.Pa. Aug. 21, 2001). See also Parker v. Stiles, C.A. No. 00-5335, 2001 WL 755094, 2001 U.S. Dist. LEXIS 9085, at *3-5 (E.D. Pa. June 29, 2001); Barnes v. City of Coatesville, C.A. No. 93-1444, 1993 WL 259329, 1993 U.S. Dist. LEXIS 9112, at *22-24 (E.D. Pa. June 28, 1993). In the instant case, Defendants have absolute immunity from Plaintiffs claims against them for their actions in initiating and prosecuting a criminal investigation and for their alleged improper conduct in withholding exculpatory evidence. 229 F.Supp.2d at 399. Plaintiffs brief in support of his Motion does not point out any legal error in the above analysis. C. Res Judicata and/or Collateral Es-toppel Finally, Plaintiff contends certification is necessary to determine if res judicata and/or collateral estoppel estopped Plaintiff from pursuing his § 1983 claims against the defendant prosecutors. The Court addressed this issue in its October 23, 2002 Memorandum and Order: The doctrine of collateral estoppel precludes a party from litigating an issue that has already been adjudicated in a previous proceeding. Witkowski v. Welch, C.A. No. 92-0924, 1997 WL 181253, 1997 U.S. Dist. LEXIS 4788, at *7 (E.D.Pa. Apr. 14, 1997), aff'd, 173 F.3d 192 (3d Cir.1999). Four elements must be" }, { "docid": "18157988", "title": "", "text": "that “the ADA, ADEA, and Title VII ah serve the same purpose— to prohibit discrimination in employment against members of certain classes. Therefore, it follows that the methods and manner of proof under one statute should inform the standards under the others as well.” Newman v. GHS Osteopathic, Inc., Parkview Hosp. Div., 60 F.3d 153, 157 (3d Cir.1995). The “consensus view among district courts in this circuit is that individuallia-bility cannot be imposed under the ADA.” Douris v. County of Bucks, 2001 WL 767579, 2001 U.S. Dist. LEXIS 9282, at *15 (citations omitted); see, e.g., Schumacher v. Souderton Area School District, C.A. No. 99-1515, 2000 WL 72047, at *3 (E.D.Pa. Jan.21, 2000); Metzgar v. Lehigh Valley Housing Authority, C.A. No. 98-3304, 1999 WL 310639, at *4 (E.D.Pa. July 27, 1999); Fullman v. Philadelphia Int’l Airport, 49 F.Supp.2d 434, 441 (E.D.Pa.1999); Brannaka v. Bergey’s, Inc., C.A, No. 97-6921, 1998 WL 195660, at *1-2 (E.D.Pa. Mar.30, 1998). “ /Courts of Appeals that have directly addressed the issue of individual liability under the ADA have concluded that no such liability exists.’ ” Douris v. Brobst, 2000 WL 199358, 2000 U.S. Dist. LEXIS 1579, at *7 (quoting Meara v. Bennett, 27 F.Supp.2d 288, 290 (D.Mass.1998) (citing Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir.1996); EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1279-82 (7th Cir.1995)). In light of these decisions, Plaintiff’s ADA retaliation claim against Defendants Gibbons, Henry, Damon, and Rauch in their individual capacities fails as a matter of law and .will be dismissed. b. Official Capacity The Court now considers Plaintiffs ADA retaliation claim against Defendants Bucks County and DA’s Office and Defendants Gibbons, Henry, Damon, and Rauch, in their official capacities. Plaintiff asserts that Defendants filed and/or prosecuted criminal and traffic charges against him in retaliation for his opposition to Bucks County’s “illegal practice to discriminate against persons with a disabled [sic] by failing to provide the legally required accessibility to their facilities, and knew or should have know [sic] because Plaintiff has' filed discrimination charges against the Defendants with the Department of Justice and PA. Human Relations Commission.”" }, { "docid": "6353106", "title": "", "text": "Cendant PRIDES Litig., 243 F.3d at 736 (3d Cir.2001); Smith v. First Union Mortgage Corp., No. 98-5360, 1999 WL 509967, at * 4 (E.D.Pa. July 19, 1999); In re Computron Software (“Computron”), 6 F.Supp.2d 313, 322 (D.N.J.1998); cf. Ikon, 194 F.R.D. at 194 (concluding that while “[t]he median in class actions is approximately twenty-five percent, ... awards of thirty percent are not uncommon in securities class actions.”) (citing Ratner v. Bennett, No. 92-4701, 1996 WL 243645, at *8 (E.D.Pa. May 8, 1996)). For example, more than twenty relatively recent class action decisions in the Third Circuit reflect fee awards between 33 1/3% and 22.5%: Case Recovery % Awarded 1. In re MobileMedia Sec. Litig., Civ. No. 96-5723 (D.N.J. Feb. 24, 2000) $26.95 million 33.33% 2. In re PNC BankCorp Sec. Litig., Civ. No. 94-1961 (W.D.Pa. Sept. 25, 1998) $5.45 million 33.33% 3. In re PNC Sec. Litig., Civ. No. 90-0592 (W.D.Pa. Dec. 6, 1993) $6.3 million 33.33% 4. In re Greenwich Pharm. Sec. Litig., No. 93-3071, 1995 U.S. Dist. LEXIS 5717 (E.D. Pa. April 25, 1995) $4.375 million 33.33% 5. In re Inacom Corp. Sec. Litig., No. 00-701 (D.Del. Jan. 14, 2003) $15.95 million 33.33% 6. Fields v. Biomatrix, Inc., No. 00-3541 (D.N.J. Dec. 2, 2002) $2.45 million 33.33% 7. In re Gen. Instrument Sec. Litig., Civ. No. 01-3051 (E.D.Pa. Dec. 27, 2001) $48 million 33.33% 8. In re Safety Components Inc. Sec. Litig., 166 F.Supp.2d 72 (D.N.J.2001) $4.5 million 33.33% 9. In re Schein Pharm. Inc. Sec. Litig., No. 98-4311 (D.N.J. Dec. 7, 2000) $8 million 33.33% 10. DiCiccio v. Am. Eagle Outfitters, Inc., Civ. No. 95-1937 (W.D.Pa. Dec. 12, 1996) $1.95 million 33.33% 11. Cullen v. Whitman Med. Corp., 197 F.R.D. 136 (E.D.Pa.2000) $7.2 million 33% 12. In re Aremissoft Corp. Sec. Litig., 210 F.R.D. 109 (D.N.J.2002) $24 million (hypothetical value) 33% 13. In re Unisys Corp. Sec. Litig., Civ. No. 99-5333, 2001 U.S. Dist. LEXIS 20160 (E.D.Pa. Dec. 6, 2001) $5.75 million 33% 14. In re ATI Techs., Inc., Sec. Litig., Civ. No. 01-2541 (E.D. Pa. April 28, 2003) $8 million 30% 15. In re Aetna Inc." }, { "docid": "16811678", "title": "", "text": "why the same rationale applicable to prescription drugs may not be applied to medical devices.” Creazzo v. Medtronic, Inc., 2006 PA Super 152, 903 A.2d 24, 31 (Pa.Super.2006). In addition, several federal district courts have extended comment k to prescription medical devices. The United States District Court for the Eastern District of Pennsylvania noted “that the reasoning behind comment k, and the Pennsylvania Supreme Court’s reasoning in Hahn, supports [comment k’s] application to prescription medical devices.” Soufflas v. Zimmer, 474 F.Supp.2d 737, 750 (E.D.Pa.2007) (citing Taylor v. Danek Medical, Inc., No. 95-7232, 1998 U.S. Dist. LEXIS 20265, 1998 WL 962062, *7 (E.D.Pa.1998)). Applying the same reasoning as Taylor, several federal courts have determined that prescription medical devices are not covered by Section 402A and have denied plaintiffs’ strict liability claims based on prescription medical devices. See Burton v. Danek Medical, Inc., et al., No. 95-5565, 1999 U.S. Dist. LEXIS 2619, 1999 WL 118020 (E.D.Pa.1999); Murray v. Synthes, No. 95-7796, 1999 U.S. Dist. LEXIS 13436, 1999 WL 672937 (E.D.Pa.1999); Davenport v. Medtronic, Inc., 302 F.Supp.2d 419 (E.D.Pa.2004); Parkinson v. Guidant Corp., 315 F.Supp.2d 741 (W.D.Pa.2004); Kester v. Zimmer Holdings, Inc., 2010 U.S. Dist. LEXIS 59869, 2010 WL 2696467 (W.D.Pa.2010). Riley v. Medtronic, Inc., 2011 WL 3444190, at *10, 2011 U.S. Dist. LEXIS 87368, at *29-30 (W.D.Pa. Aug. 8, 2011). Subsequent to this Court’s decision in Riley, no change in the law has occurred, and district courts have continued to apply comment k to medical devices. See Horsmon v. Zimmer Holdings, Inc., No. 11-1050, 2011 WL 5509420, at *1-2, 2011 U.S. Dist. LEXIS 130415, at *3-6 (W.D.Pa. Nov. 10, 2011); Esposito v. I-Flow Corp., No. 10-cv-3883, 2011 WL 5041374, at *4-5, 2011 U.S. Dist. LEXIS 122570, at *13-14 (E.D.Pa. Oct. 24, 2011). Although the aforementioned legal principles described in Riley apply to the instant case, the outcome in Riley does not dictate the same result here as the facts are distinguishable. The defendant in Riley filed a motion to dismiss the plaintiffs’ strict liability claim, alleging that it failed to state a claim under Pennsylvania law. Riley, 2011 WL 3444190, at *1," }, { "docid": "20910221", "title": "", "text": "that the alleged deprivation was committed under color of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). Here, plaintiffs allege that Officer Jaffe was acting at all times as a state law enforcement officer, rather than as a private individual. Because the acts were presumably committed “under color of state law”, the sufficiency of plaintiffs’ claims turns on the asserted deprivation of constitutional rights. A. Ninth and Tenth Amendment Claims As a preliminary matter, plaintiffs cannot cite the Ninth Amendment of the U.S. Constitution to support a § 1983 action. The Ninth Amendment establishes that “[t]he 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. As courts have consistently held, the Ninth Amendment is a rule of construction, not a substantive basis for a civil rights claim. Wardlaw v. Pickett, 1990 WL 209835, at *4, 1990 U.S. Dist. LEXIS 16704, at *10 (D.D.C. Dec. 5, 1990); accord Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir.1991); Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir.1991); Clynch v. Chapman, 285 F.Supp.2d 213, 219 (D.Conn.2003); Nicolette v. Caruso, 315 F.Supp.2d 710, 718 (W.D.Pa.2003); Coleman v. Parra, 163 F.Supp.2d 876, 886 (S.D.Ohio 2000); Basile v. Elizabethtown Area Sch. Dist., 61 F.Supp.2d 392, 403 (E.D.Pa.1999); Mann v. Meachem, 929 F.Supp. 622, 634 (N.D.N.Y.1996); Rini v. Zwirn, 886 F.Supp. 270, 289-90 (E.D.N.Y.1995); Charles v. Brown, 495 F.Supp. 862, 863-64 (N.D.Ala.1980). Plaintiffs’ invocation of the Tenth Amendment, which reserves residual powers to the states or the people, is similarly inapposite. Strandberg v. City of Helena, 791 F.2d 744, 749 (9th Cir.1986); United States v. Park, 2006 U.S. Dist. LEXIS 26942, at *3 (W.D.Wash. May 5, 2006); Miller v. Guilford Tech. Cmty. Coll., 1998 U.S. Dist. LEXIS 15153, at *9-10 (M.D.N.C. June 15, 1998); Robinson v. Vaughn, 1993 WL 451495, *6, 1993 U.S. Dist. LEXIS 15566, at *21 (E.D.Pa. Nov. 1, 1993); see also United States v. Darby, 312 U.S. 100, 124, 312 U.S. 657, 61 S.Ct. 451, 85" }, { "docid": "18158011", "title": "", "text": "Allentown, C. A. No. 91-240, 1994 WL 236546, 1994 U.S. Dist. LEXIS 7220, at *11 (E.D.Pa. May 27, 1994); Lees v. West Greene Sch. Dist., 632 F.Supp. 1327, 1335 (W.D.Pa.1986); Pendrell v. Chatham Coll., 386 F.Supp. 341, 344 (W.D.Pa.1974)). Therefore, Plaintiffs claims fail as a matter of law. Additionally, Plaintiffs civil conspiracy claim, which is duplicative of his claim in Count IV, is barred against Defendants Bucks County and DA’s Office by the PSTCA, as discussed in Section III.D.l, supra. His civil conspiracy claim is barred against Defendants Gibbons, Henry, and Damon by their absolute immunity as discussed in Section III.D.2, supra. Plaintiffs civil conspiracy claim against Defendant Rauch will be dismissed because Plaintiff has not alleged facts sufficient to state a claim for conspiracy, as discussed in Section III.D.3c, supra. For the reasons discussed above, Count V against all Defendants will be dismissed. F. Count VI: Unconstitutionally Inadequate State Appeals Procedure Count VI of Plaintiffs Complaint is brought under 42 U.S.C. § 1983 and alleges that Defendant Schweiker “fails to have an adequate or meaningful appeal process that meets federal constitutional due process requirements designed to insure against prosecutorial misconduct.” (Pl.’s Compl. ¶ 52). Plaintiff seeks money damages and a declaratory judgment that the “State appeal process [is] constitutionally inadequate.” Id. at ¶ 55: The Eleventh Amendment bars Plaintiffs § 1983 damages claim against Schweiker in his official capacity. Federal courts can not consider suits by private parties against states and their agencies unless the state has- consented to the filing of such a suit. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985); Edelman v. Jordan, 415 U.s. 651, 662, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). This immunity extends to suits asserting civil rights violations where the state is named as a defendant. Laskaris v. Thornburgh, 661 F.2d 23, 26 (3d Cir.1981). “Under the Eleventh Amendment, a plaintiff other than the United States or a state may not sue a state in federal court without the latter state’s consent unless Congress abrogates the state’s Eleventh Amendment immunity pursuant to a" }, { "docid": "15051081", "title": "", "text": "to these claims. In the Third Circuit, claims brought under Section 2615(a)(2) of the FMLA are analyzed according to the McDonnell Douglas burden-shifting framework. (McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n. 13, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)); Churchill v. Star Enterprises, 183 F.3d 184 (3d Cir.1999); Cohen v. Pitcairn Trust Co., 2001 WL 873050, 2001 U.S. Dist. LEXIS 10876 (E.D.Pa.2001); Baltuskonis v. U.S. Airways, 60 F.Supp.2d 445, at 448 (E.D.Pa.1999); Voorhees v. Time Warner Cable Nat'l Div., 1999 WL 673062, 1999 U.S. Dist. LEXIS 13227 (E.D.Pa.1999); Holmes v. Pizza Hut of America., 1998 WL 564433, 1997 U.S. Dist. LEXIS 13787 (E.D.Pa.1998). Within this framework, a plaintiff must show that: (1) she is protected under the FMLA; (2) she suffered an adverse employment action; and (3) that a causal connection exists between the adverse employment action and the plaintiff s exercise of her rights under the FMLA. Baltuskonis v. U.S. Airways, 60 F.Supp.2d 445, at 448. Plaintiff has not met the first requirement. Because Plaintiff was not qualified for her job at the time of her termination, she has not shown that she suffered an adverse employment action. Clark v. Germantown, 2001 WL 122221, 2001 U.S. Dist. LEXIS 1221 (E.D.Pa.2001) (stating that as part of prima facie case, Plaintiff must show she was qualified for her position at the time of the adverse employment action); Hodgens v. General Dynamics Corp., 144 F.3d 151 (1st Cir.1998) (stating same); 29 C.F.R. § 825.214(b) (stating that if “the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under the FMLA.”) Plaintiff availed herself of her leave rights and upon returning to work, informed her employer of the following restrictions: (1) an eight hour work day and (2) no travel with the exception of the trips to and from work. Since she was unable to fulfill an essential function of her job, that is, traveling throughout the northeastern United States, and was thus" }, { "docid": "3556422", "title": "", "text": "under § 1986. However, the evidence does not establish a genuine issue of material fact as to the liability of Norris or Small under § 1986, because plaintiff has not adduced evidence that either Norris or Small had the power to stop her suspension or transfer. Therefore, judgment will be granted in favor of Timoney, Norris, and Small on plaintiffs § 1986 claims, but denied as to Zappile. Pennsylvania Constitution Plaintiff claims that defendants violated her right to free speech under the Pennsylvania Constitution, Article I, section 7, which provides in pertinent part: The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that hberty. Pennsylvania has no statute akin to 42 U.S.C. § 1983 that authorizes lawsuits based on violations of the Pennsylvania Constitution, and thus, it is not clear that plaintiff has any claim for a violation of constitutional rights under the Pennsylvania Constitution. The Supreme Court of Pennsylvania has not decided whether a private cause of action exists under Article 1, Section 7 of the Pennsylvania Constitution. Courts of this circuit that have considered the question have concluded that Article 1, Section 7 does not establish a private cause of action for damages. See Sabatini v. Reinstein, No. 99-2393, 1999 WL 636667, 1999 U.S. Dist. LEXIS 12820, at *6 (E.D.Pa. Aug. 18, 1999); Holder v. City of Allentown, No. 91-240, 1994 WL 236546, *3, 1994 U.S. Dist. LEXIS 7220, at *11 (E.D.Pa. May 19, 1994); Lees v. West Greene School Dist., 632 F.Supp. 1327, 1335 (W.D.Pa.1986); Pendrell v. Chatham College, 386 F.Supp. 341, 344 (W.D.Pa.1974); see also Chantilly Farms, Inc. v. West Pikeland Twp., No. 00-3903, 2001 WL 290645, *12, 2001 U.S. Dist. LEXIS 3328, at *39 (E.D.Pa. Mar. 23, 2001) (citations omitted). I agree with this line of cases and adopt its reasoning. Accordingly, I conclude that defendants are entitled to judgment as a matter of law on Dooley’s claim under the Pennsylvania Constitution. Pennsylvania Criminal Statute 18 Pa. C.S. § 4953 Plaintiff" }, { "docid": "18158010", "title": "", "text": "conspiracy against Defendant Rauch, and this aspect of Count IV will be dismissed. Regarding Count IV against Defendant Rauch, Plaintiffs claims of abuse of process and civil conspiracy will be dismissed. Plaintiffs claim of malicious prosecution against Defendant Rauch under Count IV will not be dismissed. E, Count V: Pennsylvania Constitutional Claims and Conspiracy In Count V, Plaintiff claims his rights were violated under the Pennsylvania Constitution. However, the Supreme Court of Pennsylvania has not ruled on the issue of whether there is a private cause of action for damages under the state constitution, and the federal courts in this 'Circuit that have considered the issue have concluded that there is no such right under the Pennsylvania Constitution. Kelleher v. City of Reading, C.A. No. 01-3386, 2001 WL 1132401, 2001 U.S. Dist. LEXIS 14958, at *9-10 (E.D.Pa. Sept. 24, 2001) (citing Dooley v. City of Philadelphia, 153 F.Supp.2d 628, 663 (E.D.Pa.2001); Sabatini v. Reinstein, C.A. No. 99-2393, 1999 WL 636667, 1999 U.S. Dist. LEXIS 12820, at *6 (E.D.Pa. Aug. 20, 1999); Holder v. City of Allentown, C. A. No. 91-240, 1994 WL 236546, 1994 U.S. Dist. LEXIS 7220, at *11 (E.D.Pa. May 27, 1994); Lees v. West Greene Sch. Dist., 632 F.Supp. 1327, 1335 (W.D.Pa.1986); Pendrell v. Chatham Coll., 386 F.Supp. 341, 344 (W.D.Pa.1974)). Therefore, Plaintiffs claims fail as a matter of law. Additionally, Plaintiffs civil conspiracy claim, which is duplicative of his claim in Count IV, is barred against Defendants Bucks County and DA’s Office by the PSTCA, as discussed in Section III.D.l, supra. His civil conspiracy claim is barred against Defendants Gibbons, Henry, and Damon by their absolute immunity as discussed in Section III.D.2, supra. Plaintiffs civil conspiracy claim against Defendant Rauch will be dismissed because Plaintiff has not alleged facts sufficient to state a claim for conspiracy, as discussed in Section III.D.3c, supra. For the reasons discussed above, Count V against all Defendants will be dismissed. F. Count VI: Unconstitutionally Inadequate State Appeals Procedure Count VI of Plaintiffs Complaint is brought under 42 U.S.C. § 1983 and alleges that Defendant Schweiker “fails to have an adequate or" }, { "docid": "11744941", "title": "", "text": "injury and that such act constituted a crime, actual fraud, actual malice or willful misconduct, the provisions of sections ... 8546 ... shall not apply.” Hence, a battery claim against Gasper, in his individual capacity, will stand if the Court determines that there was willful misconduct. Pepiton v. City of Farell, No. 05-0573, 2005 WL 2647953, at *4-4, 2005 U.S. Dist. LEXIS 23873, at *13-14 (W.D.Pa. Oct. 17, 2005). The Pennsylvania Supreme Court defined willful misconduct as follows: Willful misconduct ... has beén defined by our Supreme Court to mean conduct whereby the actor desired to bring about the result that followed or at least was aware that I was substantially certain to follow, so that such desire can be implied.... To prove willful misconduct, a plaintiff must establish that the actor desired to bring about the result that followed, or at least it was substantially certain to follow, i.e., specific intent. Bright v. Westmoreland County, 443 F.3d 276, 287 (3d Cir.2006) (citing Robbins v. Cumberland County Children and Youth Serv., 802 A.2d 1239, 1252-53 (Pa.Commw.Ct.2002)). Merely negligent acts cannot constitute willful conduct. Willowby v. City of Philadelphia, No. 95-6143, 1996 WL 285410, at *6, 1996 U.S. Dist. LEXIS 7378, at *22 (E.D.Pa. May 21, 1996) (citing Wilson v. Pennsylvania Railroad Co., 421 Pa. 419, 219 A.2d 666, 671 (1966)). While in certain context, willful misconduct has been equated with intentional tort,\" when evaluating claims of police misconduct, such has not always been the case. Willowby, 1996 WL 285410, at *6, 1996 U.S: Dist. LEXIS 7378, at *20 (citing Renk v. City of Pittsburgh, 537 Pa. 68, 641 A.2d 289, 293 (1994)). “At common law, as applied in Pennsylvania, an' intentional attempt to inflict physical injury on another constitute assault and the actual infliction of such injury, however minor, constitutes battery.” Enhahili v. City of Philadelphia, No. 03-3331, 2004 WL 2039860, at *7, 2004 U.S. Dist. LEXIS 18544, at *24 (E.D.Pa. Sept. 10, 2004) (quoting Kedra v. City of Philadelphia, 454 F.Supp. 652, 667 (E.D.Pa. 1978)). In this case, Fulks alleges that Gasper committed battery against Daniel. Battery is an" }, { "docid": "18157990", "title": "", "text": "(Pl.’s Compl. ¶ 22). Defendants contend that to bring suit under the ADA, a plaintiff must exhaust his administrative remedies before the EEOC or the PHRC. See Churchill v. Star Enterprises, 183 F.3d 184, 190 (3d Cir.1999). Although Plaintiff filed complaints with the EEOC and the PHRC regarding his belief that Bucks County failed to provide him an accommodation, Pl.’s Compl. ¶ 12, Plaintiff neither alleges nor is there any indication that he filed an ADA retaliation claim with either agency. When a retaliation claim is not specifically presented to the EEOC, the test for whether that claim can be presented in district court is “ ‘whether the acts alleged in the subsequent ... suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom.’ ” Douris v. Brobst, 2000 WL 199358, 2000 U.S. Dist. LEXIS 1579, at *9 (quoting Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir.1984)). “The legal analysis for whether a judicial complaint is within the scope of an earlier administrative charge or a reasonable investigation therefrom turns on whether ‘there is a close nexus between the facts supporting each claim or whether additional charges made in the judicial complaint may fairly be considered explanations of the original charge or growing out of it.’ ” Ivory v. Radio One, Inc., C.A. No. 01-5708, 2002 WL 501489, at *2 (E.D.Pa. Apr.3, 2002) (quoting Fakete v. Aetna, Inc., 152 F.Supp.2d 722, 732 (E.D.Pa.2001)). Although the EEOC was on notice of Plaintiffs complaints against Bucks County for allegedly failing to provide him an accommodation, the EEOC would not have been expected to initiate a retaliation investigation based on Plaintiffs charge. See id. 2002 WL 501489, at *9-10 (citing Fieni v. Pocopson Home, C.A. No. 96-5343, 1997 WL 220280, at *5-6 (E.D.Pa. Apr.29, 1997) (dismissing retaliation claim where not mentioned in EEOC filing)). Therefore, Plaintiffs ADA retaliation claim against Defendants Bucks County and DA’s Office, and against Defendants Gibbons, Henry, Damon, and Rauch, in their official capacities, will be dismissed. 2. First Amendment and § 1983 Claims a. Absolute Immunity In his Complaint, Plaintiff alleges" }, { "docid": "15051080", "title": "", "text": "the Americans with Disabilities Act (ADA), the FMLA does not require an employer to reasonably accommodate an employee’s serious health condition. See: 29 C.F.R. § 825.702(a) and 29 C.F.R. § 825.214(b). The regulations also make clear that if the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under the FMLA. 29 C.F.R. § 825.214(b). Accordingly, since Plaintiff could not return to work and perform her job, terminating her employment did not amount to any violation of the Plaintiffs FMLA rights and she has therefore failed to state a cognizable cause of action under the FMLA on this basis. The court shall also grant the motion to dismiss with respect to the allegations that Defendants violated the FMLA when they discriminated against and wrongfully terminated Plaintiff as it is clear from the face of Plaintiffs complaint that she has failed to establish a prima facie case with respect to these claims. In the Third Circuit, claims brought under Section 2615(a)(2) of the FMLA are analyzed according to the McDonnell Douglas burden-shifting framework. (McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n. 13, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)); Churchill v. Star Enterprises, 183 F.3d 184 (3d Cir.1999); Cohen v. Pitcairn Trust Co., 2001 WL 873050, 2001 U.S. Dist. LEXIS 10876 (E.D.Pa.2001); Baltuskonis v. U.S. Airways, 60 F.Supp.2d 445, at 448 (E.D.Pa.1999); Voorhees v. Time Warner Cable Nat'l Div., 1999 WL 673062, 1999 U.S. Dist. LEXIS 13227 (E.D.Pa.1999); Holmes v. Pizza Hut of America., 1998 WL 564433, 1997 U.S. Dist. LEXIS 13787 (E.D.Pa.1998). Within this framework, a plaintiff must show that: (1) she is protected under the FMLA; (2) she suffered an adverse employment action; and (3) that a causal connection exists between the adverse employment action and the plaintiff s exercise of her rights under the FMLA. Baltuskonis v. U.S. Airways, 60 F.Supp.2d 445, at 448. Plaintiff has not met the first requirement. Because Plaintiff was not qualified for her job" }, { "docid": "11744942", "title": "", "text": "(Pa.Commw.Ct.2002)). Merely negligent acts cannot constitute willful conduct. Willowby v. City of Philadelphia, No. 95-6143, 1996 WL 285410, at *6, 1996 U.S. Dist. LEXIS 7378, at *22 (E.D.Pa. May 21, 1996) (citing Wilson v. Pennsylvania Railroad Co., 421 Pa. 419, 219 A.2d 666, 671 (1966)). While in certain context, willful misconduct has been equated with intentional tort,\" when evaluating claims of police misconduct, such has not always been the case. Willowby, 1996 WL 285410, at *6, 1996 U.S: Dist. LEXIS 7378, at *20 (citing Renk v. City of Pittsburgh, 537 Pa. 68, 641 A.2d 289, 293 (1994)). “At common law, as applied in Pennsylvania, an' intentional attempt to inflict physical injury on another constitute assault and the actual infliction of such injury, however minor, constitutes battery.” Enhahili v. City of Philadelphia, No. 03-3331, 2004 WL 2039860, at *7, 2004 U.S. Dist. LEXIS 18544, at *24 (E.D.Pa. Sept. 10, 2004) (quoting Kedra v. City of Philadelphia, 454 F.Supp. 652, 667 (E.D.Pa. 1978)). In this case, Fulks alleges that Gasper committed battery against Daniel. Battery is an intentional tort. The elements of battery are: An actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) an offensive contact with the person of the other directly or indirectly results. Willowby, 1996 WL 285410, at *6, 1996 U.S. Dist. LEXIS 7378, at *22 (quoting Restatement (Second) of Torts § 18). Given this broad definition of the tort, a fact finder can reasonably find that Gas-per’s actions constituted battery. “In an action for assault and battery, an officer may be liable if it is shown not just that he acted intentionally, but also that the officer knew that the force used was not reasonable under the circumstances.” Tarlecki v. Mercy Fitzgerald Hosp., No. 01-1347, 2002 WL 1565568, at *2, 2002 U.S. Dist. LEXIS 12937, at *7 (E.D.Pa. July 15, 2002) (citations omitted). Addi tionally, “a police officer may be held liable for assault and" }, { "docid": "18157984", "title": "", "text": "County of Bucks, C.A. No. 99-3357, 2001 WL 767579, 2001 U.S. Dist. LEXIS 9282, at *43 (E.D.Pa.2001 July 3, 2001); Douris v. Brobst, C.A. No. 99-3357, 2000 WL 199358, 2000 U.S. Dist. LEXIS 1579, at *1 (E.D.Pa. Feb. 18, 2000), and a jury verdict and entry of judgment in favor of the remaining defendant, Bucks County, and against Plaintiff. Douris v. County of Bucks, No. 99-3357, slip op. (E.D.Pa. Aug. 2, 2001). At some point in 2001, Douris was charged with impersonating a police officer, making terrorist threats, disorderly conduct, harassment, and duty to give information and render aid. (PL’s Compl. ¶ 18). Douris alleges that during the prosecution on these charges, Defendants Bucks County, the DA’s Office, Gibbons, Damon, and Rauch destroyed and failed to provide exculpatory evidence to Douris. Id. at ¶ 19. Douris was not convicted of any of these charges. Id. at ¶ 20. Plaintiffs Complaint contains six counts. Counts I V are brought against all Defendants, in their individual and official capacities, except Defendant Schweiker. Count VI is brought only against Defendant Schweiker. The Counts follow: 1. Retaliation in violation of the First Amendment and the ADA (Count I); 2. Violation of 42 U.S.C. § 1983 (Count II); 3. Retaliation under the Pennsylvania Human Relations Act (“PHRA”) (Count III); 4. Malicious prosecution, abuse of criminal process, and conspiracy (Count IV); 5. Violation of the Pennsylvania Constitution and conspiracy (Count V); and 6. Unconstitutionally inadequate state appeals procedure in violation of 42 U.S.C. § 1983 (Count VI). II. Legal Standard and Jurisdiction When deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court may look only to the facts alleged in the complaint and its attachments. Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.1994). The Court must accept as true all well-pleaded allegations in the complaint and view them in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir.1985). A Rule 12(b)(6) motion will be granted only when it is certain that no relief could be granted" }, { "docid": "22088160", "title": "", "text": "\"argues that he did not avail himself of the administrative process because it could not provide him with two of the three forms of- relief that he seeks in the present action”). Both dismissals would thus fall within a district court’s inherent power to dismiss sua sponte a complaint which facially violates a bar to suit. . The district courts in this circuit are divided on whether the PLRA exhaustion requirement is an affirmative defense or some form of heightened pleading. Compare cases putting pleading burden on defendant, see, e.g., Santiago v. Fields, 170 F.Supp.2d 453, 458 (D.Del.2001); Gregory v. PHS, Inc., 2001 WL 1182779 (D.Del. Sept. 21, 2001), 2001 U.S. Dist. LEXIS 15765, at *7-10, with those that hold it is plaintiff's burden, see, e.g., Bensinger v. Hollandhull, 2001 WL 1622231 (E.D.Pa. Dec. 18, 2001), 2001 U.S. Dist. LEXIS 21014, at *8 ; Rivera v. Whitman, 161 F.Supp.2d 337, 343 (D.N.J.2001); Payton v. Horn, 49 F.Supp.2d 791, 797 (E.D.Pa.1999) (citing Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.1998)); White v. Fauver, 19 F.Supp.2d 305, 312 (D.N.J.1998). . The position of the Eighth Circuit is not clearly defined. In McAlphin v. Morgan, 216 F.3d 680, 682 (8th Cir.2000), the court, after citing Brown, dismissed the prisoner's complaint, noting he failed to attach evidence of exhaustion. See also Jarrett v. Norris, 2001 WL 708868 (8th Cir.2001) (“Although Jarrett submitted numerous grievances regarding his medical care, he did not present proof that he fully exhausted as to all of the claims in his complaint.”); Gill v. Herndon, 2001 WL 476952 (8th Cir.2001) (“Gill failed to attach to his complaint any proof of administrative exhaustion. In fact, Gill did not even attach proof of his initial grievances that were embodied in administrative records.”). Recently, however, in Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir.2001), the court stated, without citation to Brown or McAlphin, that “we recognize that reliance upon the PLRA exhaustion requirement is an affirmative defense under Fed.R.Civ.P. 8(c)” and cited the Seventh Circuit’s decision in Massey. . We do not suggest that defendants may not raise failure to exhaust" }, { "docid": "16112252", "title": "", "text": "Nov. 17, 1998); McCarthy v. Scottsdale Ins. Co., No. 99-978, 1999 WL 672642, 1999 U.S. Dist. LEXIS 12899 (E.D.Pa. Aug. 16, 1999); Mantakounis v. Aetna Cas. & Sur. Co., No. 98-4392, 1999 WL 600535, 1999 U.S. Dist. LEXIS 12214 (E.D.Pa. Aug. 10, 1999); Liberty Mut. Fire Ins. Co. v. Corry Indus., No. 97-172E, 2000 U.S. Dist. LEXIS 11735 (W.D.Pa. Mar. 30, 2000); Lochbaum v. United States Fid. & Guar. Co., 136 F.Supp.2d 386 (each applying a two-year period), and Woody v. State Farm Fire & Cas. Co., 965 F.Supp. 691 (E.D.Pa.1997); Miller v. Cincinnati Ins. Co., No. 97-CY-1223, 1997 U.S. Dist. LEXIS 23725 (E.D.Pa. July 9, 1997) (each applying a six-year period). The district court in this case relying on Lochbaum applied the two-year statute of limitations. The Lochbaum court determined that Pennsylvania’s bad faith statute sounded exclusively in tort and therefore concluded that if the Pennsylvania Supreme Court were presented with the issue, it would hold that the two-year statute of limitations applies. See Lochbaum, 136 F.Supp.2d at 390. We affirmed the judgment in Lochbaum in a not prece-dential opinion and thus the issue is open in this court. Lochbaum v. United States Fid. & Guar. Co., 265 F.3d 1055 (3d Cir.2001) (table). Haugh argues that the district court applied the wrong statute of limitations and that Pennsylvania’s six-year “catchall” statute of limitations applies to recovery of damages for bad faith under section 8371. See Br. of Appellant at 27. In support of this argument, he suggests that we should adopt the analysis of the Common Pleas Court of Philadelphia County in Trujillo, 54 Pa. D. & C.4th 241. While we regard certain aspects of the Trujillo court’s reasoning as convincing, for example its criticism that some courts that have found that section 8371 sounds in tort have failed to highlight the similarities between bad faith claims and contract claims, more significant aspects of its reasoning are inconsistent with our precedents. For example, Haugh puts great weight on the fact that Trujillo discredits those eases that interpret section 8371 “as a legislative attempt to create a ‘new tort’ in" } ]

[ { "docid": "9436686", "title": "", "text": "On September 22, 2009, Ayissi-Etoh claims that Pesut gave him a choice between dropping his claims with the EEOC and being fired. Pesut denies this. Three weeks later, Fannie Mae fired Ayissi-Etoh. Ayissi-Etoh then added a retaliation claim to his EEOC complaint. Ayissi-Etoh subsequently filed this suit in the District Court. As relevant here, Ayissi-Etoh advanced four claims. He alleged (i) that Fannie Mae and Wagner denied him a salary increase because of his race; (ii) that Fannie Mae subjected him to a racially hostile work environment; (iii) that Fannie Mae fired him in retaliation for his filing discrimination claims with the EEOC; ■ and (iv) that Pesut defamed Ayis-si-Etoh when she accused him of plagiarism. The District Court granted Fannie Mae’s motion for summary judgment. See Etoh v. Fannie Mae, 883 F.Supp.2d 17 (D.D.C.2011). Ayissi-Etoh contends that the District Court erred in granting summary judgment against him. II We review motions for summary judgment de novo and consider the evidence in the light most favorable to the non-moving party — here, Ayissi-Etoh. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Stewart v. St. Elizabeths Hospital, 589 F.3d 1305, 1307 (D.C.Cir.2010). A Ayissi-Etoh claims that he was denied a raise because of his race, in violation of 42 U.S.C. § 1981. Section 1981 prohibits private employers from intentionally discriminating on the basis of race with respect to the “benefits, privileges, terms, and conditions” of employment. 42 U.S.C. § 1981; see Runyon v. McCrary, 427 U.S. 160, 170, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976). In Section 1981 and Title VII cases, courts use the same framework for determining whether unlawful discrimination occurred. See generally Rothstein et al., Employment Law § 2.40 (4th ed.2009); see also U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). For purposes of summary judgment, the operative question under Section 1981 — as under the Title VII anti-discrimination framework — is whether “the" } ]

[ { "docid": "21821479", "title": "", "text": "reference to his allegedly ‘being subject to harassment because of age and race’ ”); Allen v. Henifin, No. 80-1418, 1980 WL 281, *3 (D.D.C. Dec. 10, 1980) (unpublished) (dismissing age discrimination claim for failure to administratively exhaust when plaintiffs references to instituting litigation “never referred to an age discrimination claim” and therefore “can in no way be construed to allege age discrimination or to constitute notice of intent to file such a suit”). Second, Ms. Lapera argues that Fannie Mae’s Dispute Resolution Policy, which requires employees to arbitrate their claims against Fannie Mae before proceeding to court, is “unconscionable and unfairly lopsided.” Pl.’s Opp’n at 39. In support of this argument, Ms. Lapera supplies an unadorned citation to a nonbinding, non-federal, out-of-circuit unpublished decision by a California Court of Appeal, Cecelia Carter v. Fannie Mae, Cal. Super. Ct. No. 30-2013-00647896 (Cal. Sup. Ct. Aug. 26, 2014). Rather than follow a California State Court decision, this Court instead adheres to the decisions by other Judges from this Court that enforce the- DPR’s arbitration requirement. See, e.g., Skrynnikov v. Fed. Nat’l Mortg. Ass’n, 943 F.Supp.2d 172, 177-78 (D.D.C.2013) (holding that the DPR’s “broad and inclusive language” does not render the agreement unenforceable). Accordingly, Ms. Lapera’s conceded failure to pursue any age-discrimination claims in arbitration forecloses her attempt to do so here. C. Ms. Lapera’s Race and Personal-Appearance Discrimination Claims As for her remaining discrimination claims, which are properly before this Court, Ms. Lapera contends that Fannie Mae discriminated against her on the basis of her race and personal appearance by (1) classifying her position at the “M” salary grade, and (2) failing to promote her to the position of Vice President of EPMO Planning and Alignment. Before turning to Ms. Lapera’s claims arising out of each incident, the parties’ arguments as to whether Ms. Lapera’s Hispanic identity qualifies as race within the meaning of § 1981 are addressed first. 1. Hispanic Ethnicity is a Race for Purposes of § 1981 Section 1981 “forbid[s] all ‘racial’ discrimination in the making of private as well as public contracts.” Saint Francis College v. Al-Khazraji, 481" }, { "docid": "21821477", "title": "", "text": "are “claims involving rights protected by ... federal) ] [and] state ... law.” Id. ¶ 2. Consequently, if, as Fannie Mae asserts, Ms. Lapera did not first arbitrate her age-discrimination claims, then this Court is not empowered to adjudicate such claims. See Nat’l R.R. Passenger Corp. v. Boston & Maine Corp., 850 F.2d 756, 759 (D.C.Cir.1988) (“It is a necessary corollary of the principle that ‘arbitration is a matter of contract’ that when the parties have provided that a particular type of dispute should be settled in arbitration, rather than in litigation, a court may not override that agreement by itself deciding such a dispute.” (emphasis omitted)). Ms. Lapera’s Demand for Arbitration failed to reference age discrimination in its introductory section and alleged only that “Fannie Mae engaged in discrimination against Ms. Lapera on the basis of race and personal appearance in compensation, evaluation of performance, and promotions.” Demand for Arbitration at 6. Indeed, all three counts asserted in her Demand for Arbitration “sounded in race or personal appearance discrimination.” Def.’s Reply Supp. Mot. Dismiss (“Def.’s Reply”) at 4, ECF 16-1; see Demand for Arbitration at 13 (alleging that Fannie Mae “engaged in unlawful discrimination against [Ms. Lapera] [in violation of the DCHRA] based on her race and personal appearance”); id. at 14 (alleging that Fannie Mae “engaged in unlawful discrimination against Ms. Lapera [in violation of Title VII] based on her race”); id. at 15 (alleging that Fannie Mae “subjected [Ms. Lapera] to discrimination based on her race, Hispanic American”). Ms. Lapera advances two arguments to overcome her apparent failure to raise any claim of age discrimination in arbitration. See Pl.’s Opp’n at 38^41. First, she contends that she adequately alleged age discrimination because her Demand for Arbitration referenced her age as well as the age of the selectee, Ms. Fraser. Id. at 38-39. Mere reference to age does not, however, amount to an actual assertion of a cause of action for age discrimination for purposes of exhaustion. Cf. Coleman v. Johnson, 19 F.Supp.3d 126, 139 (D.D.C.2014) (dismissing the plaintiffs race and age discrimination claims notwithstanding the complaint’s “fleeting" }, { "docid": "21821516", "title": "", "text": "that Ms. Keller was not asked to resign from her position. See PL's Arb. Tr. at 467 (\"Q. Was Ms. Keller asked to resign from her position? A. No. Q. And how do you know Ms. Keller was not asked to resign from her position? A. Because Ms. Keller came to me and asked me for a package.”). . Ms. Gehring flatly denied having pre-select-ed Mr. Hallet for the position during her arbitration testimony. See Pl.’s Arb. Tr. at 606-07 (\"Q. [D]id you communicate to individuals in human resources that you wanted to place Joe Hallet in the position and you wanted to find out what was needed to get him through the process ... ? A. No.”). . Thus Fannie Mae's alternative argument that Ms. Lapera’s age-discrimination claims are barred by the DCHRA’s statute of limitations, see Def.'s Mem. at 10; Def.'s Reply at 7-8, need not be addressed. . Ms. Lapera’s DCHRA and § 1981 racial discrimination claims are addressed together since, as noted, supra Part III.A., the same standard applies. . Village of Freeport had a slightly different posture than this case, as the plaintiff there was an Italian-American (i.e., Caucasian) and argued that the defendant had hired a less qualified Hispanic for the position of police chief. Id. at 598. Nevertheless, the Second Circuit plainly held that “discrimination based on Hispanic ancestry or lack thereof constitutes racial discrimination under that statute.” Id. . Ms. Lapera points to the fact that “Fannie Mae employees with similar qualifications and duties outside her protected classes were classified at level 'N' ” and that her peers with “significantly less responsibility ... were also classified under an ‘N’ salary grade.” Pl.’s Opp'n at 33. Furthermore, one of Ms. Lap-era's direct reports received her same salary grade of \"M.” Id. at 34. Finally, postings for positions with \"fewer responsibilities and qualification requirements than Ms. Lapera's position were also posted at higher levels than her position.” Id. . It is true that Fannie Mae supervisors interfaced with the Compensation Department to help the individual tasked with leveling a position understand the responsibilities and" }, { "docid": "21821480", "title": "", "text": "Skrynnikov v. Fed. Nat’l Mortg. Ass’n, 943 F.Supp.2d 172, 177-78 (D.D.C.2013) (holding that the DPR’s “broad and inclusive language” does not render the agreement unenforceable). Accordingly, Ms. Lapera’s conceded failure to pursue any age-discrimination claims in arbitration forecloses her attempt to do so here. C. Ms. Lapera’s Race and Personal-Appearance Discrimination Claims As for her remaining discrimination claims, which are properly before this Court, Ms. Lapera contends that Fannie Mae discriminated against her on the basis of her race and personal appearance by (1) classifying her position at the “M” salary grade, and (2) failing to promote her to the position of Vice President of EPMO Planning and Alignment. Before turning to Ms. Lapera’s claims arising out of each incident, the parties’ arguments as to whether Ms. Lapera’s Hispanic identity qualifies as race within the meaning of § 1981 are addressed first. 1. Hispanic Ethnicity is a Race for Purposes of § 1981 Section 1981 “forbid[s] all ‘racial’ discrimination in the making of private as well as public contracts.” Saint Francis College v. Al-Khazraji, 481 U.S. 604, 609, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987); accord CBOCS W., Inc. v. Humphries, 553 U.S. 442, 459 n. 1, 128 S.Ct. 1951, 170 L.Ed.2d 864 (2008). Fannie Mae argues that § 1981 “does not provide a cause of action for [Ms. Lapera’s] theories of discrimination based on her ... alleged Hispanic national origin.” Def.’s Mem. at 6 (emphasis added). Ms. Lapera responds that “District of Columbia courts have overwhelmingly recognized claims of race, ethnic and national origin discrimination under Section 1981 based on a plaintiff’s Hispanic identity.” Pl.’s Opp’n at 35 (collecting cases). While not entirely clear whether Fannie Mae’s position is that Hispanic ethnicity is not a race for purposes of § 1981 or that Ms. Lapera’s racial discrimination claims rely on her country of origin rather than her race, either way, Fannie Mae’s argument fails. After the parties submitted their briefing in this case, the Second Circuit addressed the issue whether Hispanic is a race under § 1981. See Village of Freeport v. Barrella, 814 F.3d 594, 600-10 (2d Cir.2016)." }, { "docid": "21821475", "title": "", "text": "of Columbia, 298 F.3d 989, 992-93 (D.C.Cir.2002)). 2. DCHRA The DCHRA prohibits discrimination on the basis of, among other things, “race, ... age, [and] personal appearance.” D.C. Code § 2-1401.01. As relevant here, the DCHRA expressly provides that an employer may not “fail or refuse to hire, or to discharge, any individual; or otherwise to discriminate against any individual, with respect to his compensation, terms, conditions, or privileges of employment, including promotion; or to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee.” D.C. Code § 2-1402.11. DCHRA claims are evaluated under the same framework as § 1981 claims. See Pitts v. Howard Univ., 111 F.Supp.3d 9, 24 (D.D.C.2015) (citing Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 576 (D.C.Cir.2013)). That is, in the absence of direct evidence of discrimination, the Court employs McDonnell Douglas to decide whether a plaintiff has marshaled enough evidence to take her claims to a jury. Olatunji, 958 F.Supp.2d at 31. B. Ms. Lapera’s Age Discrimination Claims Ms. Lapera’s complaint asserts that Fannie Mae discriminated against her on the basis of her age in violation of the DCHRA by (1) classifying her position at the “M” salary grade and denying her subsequent requests to relevel her salary grade, and (2) failing to promote her to the position of Vice President of EPMO Planning and Alignment. Compl. ¶¶ 11-12, 23. Fannie Mae contends that it is “entitled to judgment as a matter of law on [Ms. Lap-era’s] age discrimination claims brought under the DCHRA because they were not first arbitrated as required by Fannie Mae’s Dispute Resolution Policy (the ‘DRP’).” Def.’s Mem. at 4. Fannie Mae is correct. The arbitration policy governing Ms. Lapera’s employment relationship with Fannie Mae unambiguously provides that an employee “must arbitrate” “all claims ... against Fannie Mae ... involving a legally-protected right, that directly or indirectly relate to ... employment” “before bringing suit ... in court.” DRP ¶¶ 1-2. Among the claims that an employee must arbitrate before proceeding to court" }, { "docid": "21821476", "title": "", "text": "31. B. Ms. Lapera’s Age Discrimination Claims Ms. Lapera’s complaint asserts that Fannie Mae discriminated against her on the basis of her age in violation of the DCHRA by (1) classifying her position at the “M” salary grade and denying her subsequent requests to relevel her salary grade, and (2) failing to promote her to the position of Vice President of EPMO Planning and Alignment. Compl. ¶¶ 11-12, 23. Fannie Mae contends that it is “entitled to judgment as a matter of law on [Ms. Lap-era’s] age discrimination claims brought under the DCHRA because they were not first arbitrated as required by Fannie Mae’s Dispute Resolution Policy (the ‘DRP’).” Def.’s Mem. at 4. Fannie Mae is correct. The arbitration policy governing Ms. Lapera’s employment relationship with Fannie Mae unambiguously provides that an employee “must arbitrate” “all claims ... against Fannie Mae ... involving a legally-protected right, that directly or indirectly relate to ... employment” “before bringing suit ... in court.” DRP ¶¶ 1-2. Among the claims that an employee must arbitrate before proceeding to court are “claims involving rights protected by ... federal) ] [and] state ... law.” Id. ¶ 2. Consequently, if, as Fannie Mae asserts, Ms. Lapera did not first arbitrate her age-discrimination claims, then this Court is not empowered to adjudicate such claims. See Nat’l R.R. Passenger Corp. v. Boston & Maine Corp., 850 F.2d 756, 759 (D.C.Cir.1988) (“It is a necessary corollary of the principle that ‘arbitration is a matter of contract’ that when the parties have provided that a particular type of dispute should be settled in arbitration, rather than in litigation, a court may not override that agreement by itself deciding such a dispute.” (emphasis omitted)). Ms. Lapera’s Demand for Arbitration failed to reference age discrimination in its introductory section and alleged only that “Fannie Mae engaged in discrimination against Ms. Lapera on the basis of race and personal appearance in compensation, evaluation of performance, and promotions.” Demand for Arbitration at 6. Indeed, all three counts asserted in her Demand for Arbitration “sounded in race or personal appearance discrimination.” Def.’s Reply Supp. Mot. Dismiss" }, { "docid": "21821512", "title": "", "text": "Rodriguez’s] accent changed, she [would] not have any [ ] opportunities for promotion.” Id. To be sure, the testimony about Ms. Gehring’s statements about Hispanic and overweight employees is disputed. Ms. Gehring denies having made the comments, see Defi’s Reply Mem. at 18 & n.3, and even if she did, some are susceptible of innocent interpretations, such as Ms. Gehring’s offer to help Ms. Keller lose weight. If believed, however, this testimony permits the inference that Ms. Gehring held negative views of Hispanic and overweight employees, and a jury could infer that Ms. Gehring acted upon those views in declining to select Ms. Lapera for the Vice President of Planning and Alignment position. Although a close call, reviewing the record as a whole, Ms. Lapera has produced sufficient evidence to create a genuine issue as to whether Fannie Mae’s rationale for selecting Ms. Fraser for the Vice President of Planning and Alignment position was pretextual. “In the end, the record supports two plausible interpretations of what happened.” Evans, 716 F.3d at 622. One view is that Ms. Gehring, who drove the hiring process, harbored biases toward Hispanic and overweight employees and selected Ms. Fraser not because she was more qualified but because she fit the mold in terms of demographics and personal appearance that Ms. Gerhing preferred. The other view is that, notwithstanding her subject matter expertise, Ms. Lapera simply lacked the requisite communication skills to be effective in the Vice President of Planning and Alignment role. Ultimately, a jury will get to choose between these “competing views.” Id. IV. CONCLUSION For the foregoing reasons, Fannie Mae’s motion for summary judgment is granted in part and denied in part. Specifically, this motion is granted as to all of Ms. Lapera’s age discrimination claims as well as her salary leveling claims. The motion is denied as to Ms. Lapera’s non-selection claims alleging racial discrimination under 42 U.S.C. § 1981 and racial and personal-appearance discrimination under the DCHRA. The parties are directed to jointly submit, by October 19, 2016, three proposed dates for trial on the claims remaining in this case. The" }, { "docid": "21821464", "title": "", "text": "Department, Mike Choi, a Vice President in EPMO, and Ms. Gehring. Def.’s MSJ, Ex. 34, ECF No. 11-34. Ms. Fraser was ultimately selected to fill the Vice President of EPMO Planning and Alignment position. Lapera Decl. ¶ 24; PL’s Arb. Tr. at 152. Ms. Gehring relayed Fannie Mae’s hiring decision to Ms. Lapera in a face-to-face meeting. PL’s Arb. Tr. at 152. Several months later, Ms. Lapera left Fannie Mae and became a consultant. Def.’s SUF ¶ 96. B. Procedural History Ms. Lapera pursued her claims in nonbinding arbitration as required by her employment agreement. See generally Def.’s MSJ, Ex. 40 (“Demand for Arbitration”), ECF No. 11-40. Following an opportunity for discovery, the parties participated in a four-day hearing before the arbitrator, during which the parties presented witness testimony subject to cross-examination, submitted documentary evidence, and filed post-hearing briefs. See JAMS Arbitration Award (“Arbitration Award”) at 2, ECF No. 11-41. The arbitrator ruled in favor of Fannie Mae. Id. at 6. As to Ms. Lapera’s racial discrimination claims, the arbitrator found that “no evidence [ ] of race discrimination was adduced during the four days of trial.” Id. at 2. As for Ms. Lapera’s claim that Fannie Mae discriminated against her on account of her personal appearance in refusing to relevel her salary grade, the arbitrator concluded that “the ... record demonstrates an orderly and regular, if slow, process that ultimately resulted in a significant salary increase for Ms. Lapera,” and that “[n]o evidence or even hint of discrimination appears [in the] record.” Id. at 3. Finally, the arbitrator rejected Ms. Lapera’s non-promotion claim, finding that Ms. Lapera had not proven that Fannie Mae’s proffered nondiscriminatory reason for selecting Ms. Fraser was pretextual. Id. at 6 (“Ml of Ms[.] Lapera’s testimony about Ms[.] Geh-ring’s treatment of other employees was anecdotal, and most of it was either uncorroborated or disputed. Most importantly, however: except for Ms[.] Lapera’s testimony about her own belief and her own self-image, there was no evidence in the record that anyone said, thought, or acted upon a perception that Ms[.] Lapera herself was overweight, or improperly dressed," }, { "docid": "21821485", "title": "", "text": "against based upon her Hispanic ethnicity, her racial discrimination claims are legally cognizable. 2. Salary Leveling Claims Ms. Lapera asserts that Fannie Mae discriminated against her on the basis of her race and personal appearance when the company releveled salaries and assigned her position, Director of Lean Six Sigma, the salary grade of “M” rather than “N,” and then rejected her requests to change her salary grade to an “N.” Fannie Mae contends that Ms. Lapera fails to make out a prima facie case of discrimination with this claim but that even if she had, Fannie Mae had “legitimate, non-discriminatory reasons” for declining to relev-el Ms. Lapera’s position’s salary. Def.’s Mem. at 10. In opposing summary judgment on her salary leveling claim, Ms. Lapera focuses exclusively on her prima facie case, arguing that several facts give rise to an inference of discrimination. See Pl.’s Opp’n at 32-34. Problematically for Ms. Lapera, however, Fannie Mae has proffered a legitimate, nondiscriminatory explanation as to why it initially assigned her position an “M” salary grade and why her subsequent requests for releveling were denied. See Adeyemi v. Dist. of Columbia, 525 F.3d 1222, 1226 (D.C.Cir.2008) (explaining that a plaintiffs prima facie case is an “ ‘unnecessary sideshow' ” where the defendant proffers a legitimate rationale for its decision and admonishing the parties for devoting much of their briefing to the plaintiffs prima facie case (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993))). In particular, Fannie Mae has asserted that its Compensation Department assigned all positions’ salary grades by looking at market wages for a given job description and then slotting that position into the appropriate salary grade. See Def.’s Arb. Tr. at 525 (“[T]he structure was built based on available market data. There are companies that produce compensation surveys and that’s how we get our market data. ... We use market data for positions to determine the grade level .... ”). Critically, the Compensation Department did not consider in any way the characteristics or performance of the individual who occupied a given position." }, { "docid": "16681039", "title": "", "text": "at the heart of Plaintiffs case: employment discrimination. The DCHRA proscribes discriminatory employment practices based on an employee’s “race, color, religion, national origin, sex, age, ... or political affiliation,” among other things. D.C.Code § 2-1402.11(a)(l). In Count I of her Amended Complaint, Plaintiff alleges that Gallaudet violated the DCHRA by: (1) suspending her and subsequently demoting her in a discriminatory manner; (2) retaliating against her for engaging in protected activity&emdash;namely, signing the petition supporting Proposition 6; (3) promoting a hostile work environment; (4) aiding and abetting discriminatory actions; and (5) intentionally and maliciously disciplining her in violation of the statute’s “effects clause.” See Am. Compl., ¶¶ 62-96. None of those claims, however, can withstand the present Motion to Dismiss. 1. Discriminatory Treatment The DCHRA makes it illegal to “discriminate against any individual, with respect to ... compensation, terms, conditions, or privileges of employment, including promotion” and to “limit, segregate, or classify ... employees in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee” on the basis of membership in a protected class. D.C.Code § 2-1402.11(a)(1). To adequately plead discriminatory treatment under the DCHRA, therefore, Plaintiff must establish 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. See Stella v. Mineta, 284 F.3d 135, 145 (D.C.Cir.2002). McCaskill here alleges discriminatory treatment on the basis of a remarkable number of grounds: race, religion, sexual orientation, marital status, and political affiliation. See Am. Compl., ¶¶ 62-77. While she correctly asserts that the university’s decisions to place her on administrative leave and, eventually, to demote her constitute the requisite adverse action, her stumbling block arrives at step three. To satisfy that third requirement, she must plead facts that show that the adverse action was taken because of her protected status&emdash;that is, that the action “was not attributable to [a] common legitimate reason[].” George v. Leavitt, 407 F.3d 405, 412 (D.C.Cir.2005). Mere speculation as to the employer’s motivation cannot establish a" }, { "docid": "15512154", "title": "", "text": "it unlawful for an employer to take certain employment actions “wholly or partially for a discriminatory reason based upon the actual or perceived ... race ... of any individual,” including: [t]o fail or refuse to hire, or to discharge, any individual; or otherwise to discriminate against any individual, with respect to his compensation, terms, conditions, or privileges of employment, including promotion; or to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee. D.C.Code § 2-1402.11(a), (a)(1). Plaintiff claims that the Red Cross discriminated against her based on her race by offering her a position in a higher salary range with increased responsibilities without a corresponding pay increase and by terminating her employment when she refused to accept the position. (Am.Compl.lffl 29-30.) In considering claims brought under the DCHRA, the D.C. Court of Appeals applies the familiar burden-shifting test articulated by the Supreme Court for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Hollins v. Fed. Nat’l Mortgage Ass’n, 760 A.2d 563, 571 (D.C. 2000). Under that test, the plaintiff has the initial burden of establishing a prima facie case of discrimination. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Hollins, 760 A.2d at 571. If the plaintiff succeeds in proving a prima facie case, the burden then shifts to the defendant, who must “ ‘producfe] evidence’ that the adverse employment aetion[ ][was] taken Tor a legitimate, nondiscriminatory reason.’ ” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (quoting Burdine, 450 U.S. at 254, 101 S.Ct. 1089); see Hollins, 760 A.2d at 571. The defendant’s burden, at this stage, is only one of production; it “need not persuade the court that it was actually motivated by the proferred reasons.” Burdine, 450 U.S. at 254, 101 S.Ct. 1089; see Hollins, 760 A.2d at 571. Finally, if the defendant satisfies its burden," }, { "docid": "21821465", "title": "", "text": "] of race discrimination was adduced during the four days of trial.” Id. at 2. As for Ms. Lapera’s claim that Fannie Mae discriminated against her on account of her personal appearance in refusing to relevel her salary grade, the arbitrator concluded that “the ... record demonstrates an orderly and regular, if slow, process that ultimately resulted in a significant salary increase for Ms. Lapera,” and that “[n]o evidence or even hint of discrimination appears [in the] record.” Id. at 3. Finally, the arbitrator rejected Ms. Lapera’s non-promotion claim, finding that Ms. Lapera had not proven that Fannie Mae’s proffered nondiscriminatory reason for selecting Ms. Fraser was pretextual. Id. at 6 (“Ml of Ms[.] Lapera’s testimony about Ms[.] Geh-ring’s treatment of other employees was anecdotal, and most of it was either uncorroborated or disputed. Most importantly, however: except for Ms[.] Lapera’s testimony about her own belief and her own self-image, there was no evidence in the record that anyone said, thought, or acted upon a perception that Ms[.] Lapera herself was overweight, or improperly dressed, or possessed of an unattractive body shape.”). As allowed under Fannie Mae’s Dispute Resolution Policy, Ms. Lapera rejected the arbitral award and filed a complaint in D.C. Superior Court on January 27, 2015. See Fannie Mae Dispute Resolution Policy (“DRP”) at ¶ 14, ECF No. 16-2 (“The employee may, within 30 calendar days of the date of issuance of the Award, reject it, in its entirety, by sending'a completed ‘Rejection of Arbitration Award’ form to JAMS and [Fannie Mae’s Compliance and Ethics Department].”); see also generally Compl. Fannie Mae removed the action to this Court on March 27, 2015. See generally Notice of Removal, ECF No. 1. Ms. Lapera’s complaint asserts two claims. against Fannie Mae under the DCHRA and § 1981. In Count I, Ms. Lap-era contends that Fannie Mae violated the DCHRA by “knowingly and intentionally engaging] in unlawful discrimination against [Ms. Lapera] based on her race, age and personal appearance” by, inter alia, assigning Ms. Lapera’s position of Director of Lean Six Sigma a salary grade of “M” and denying Ms. Lapera" }, { "docid": "21821466", "title": "", "text": "or possessed of an unattractive body shape.”). As allowed under Fannie Mae’s Dispute Resolution Policy, Ms. Lapera rejected the arbitral award and filed a complaint in D.C. Superior Court on January 27, 2015. See Fannie Mae Dispute Resolution Policy (“DRP”) at ¶ 14, ECF No. 16-2 (“The employee may, within 30 calendar days of the date of issuance of the Award, reject it, in its entirety, by sending'a completed ‘Rejection of Arbitration Award’ form to JAMS and [Fannie Mae’s Compliance and Ethics Department].”); see also generally Compl. Fannie Mae removed the action to this Court on March 27, 2015. See generally Notice of Removal, ECF No. 1. Ms. Lapera’s complaint asserts two claims. against Fannie Mae under the DCHRA and § 1981. In Count I, Ms. Lap-era contends that Fannie Mae violated the DCHRA by “knowingly and intentionally engaging] in unlawful discrimination against [Ms. Lapera] based on her race, age and personal appearance” by, inter alia, assigning Ms. Lapera’s position of Director of Lean Six Sigma a salary grade of “M” and denying Ms. Lapera a promotion to the position of Vice President of EPMO Planning and Alignment. Compl. ¶ 30. Similarly, in Count II, Ms. Lapera contends that Fannie Mae violated § 1981 by “knowingly and intentionally subjecting] [Ms. Lapera] to discrimination based on her race, Hispanic American, when [Fannie Mae] failed to reclassify her position properly form [sic] 2009 through 2012 ...; discriminated against her in the evaluation of her performance ...; and denied Ms. Lapera a promotion to the position of Vice President of Planning and Alignment .... ” Id. ¶ 35. As relief, Ms. Lapera seeks a declaration that Fannie Mae violated the DCHRA and § 1981; a permanent injunction prohibiting Fannie Mae from engaging in any discriminatory employment practices; back pay and front pay in an amount to be determined at trial; an order prohibiting Fannie Mae from retaliating against Ms. Lapera or any other person for participating in this case; compensatory and punitive damages in amounts to be determined by an arbitrator; reasonable attorneys’ fees, expert fees, and costs; and pre-judgment and post-judgment interest." }, { "docid": "21821519", "title": "", "text": "been assigned an \"N” salary grade. Id. at 540-41. Ms. West-wood testified that she did not recall seeing the second job description and that, in any event, she did not perceive Ms. Harris to be challenging the salary grade for the Director of Lean Six Sigma position. Id. . Ms. Lapera’s salary leveling claims are obviously unmeritorious given her failure to address pretext. Accordingly, this Court need not address Fannie Mae’s alternative argu ment that the statute of limitations ran on Ms. Lapera's claim arising out of her 2009 request for reclassification of her position’s salary grade. See Eief.'s Mem. at 10; Def.’s Reply at ■12. . Ms. Lapera contends that she has adduced direct evidence of discrimination as to her non-selection claims. PL's Opp’n at 24-25. In fact, however, the \"direct evidence” that Ms. Lapera points to is indirect evidence of discrimination rather than direct evidence. The evidence that Ms. Lapera relies on suggests more broadly that Ms. Gehring exhibited discriminatory attitudes toward Hispanic employees and overweight employees. None of the cited evidence, however, proves that Fannie Mae's selection of Ms. Fraser over Ms. Lapera for the Vice President of EPMO Planning position was the result of discrimination. See Ayissi-Etoh, 712 F.3d at 576 (explaining that direct evidence of discrimination is, for example, a “ 'statement that itself showed racial or gender bias in the [employment] decision’ \" (emphasis added) (quoting Vatel v. All. of Auto. Mfrs., 627 F.3d 1245, 1247 (D.C.Cir.2011))); Sims v. Dist. of Columbia, 33 F.Supp.3d 1, 9 (D.D.C.2014) (\"[DJirect evidence is 'a smoking gun showing that the decisionmaker relied upon a protected characteristic in taking an employment action.' ” (emphasis in original) (quoting PowerComm, LLC v. Holyoke Gas & Elec. Dep’t, 657 F.3d 31, 35 (1st Cir.2011) (internal quotation marks omitted))); Sykes v. Napolitano, 710 F.Supp.2d 133, 148 (D.D.C.2010) (“Mr. Sykes fails to demonstrate any nexus between [an] email [containing a racially derogatory joke] and his own reassignment.”). Accordingly, Ms. Lapera's evidence of discrimination is properly analyzed as only indirect and circumstantial. . A rating of \"2” equated to “exceeds expectations.’’ Id. at 132." }, { "docid": "21821467", "title": "", "text": "a promotion to the position of Vice President of EPMO Planning and Alignment. Compl. ¶ 30. Similarly, in Count II, Ms. Lapera contends that Fannie Mae violated § 1981 by “knowingly and intentionally subjecting] [Ms. Lapera] to discrimination based on her race, Hispanic American, when [Fannie Mae] failed to reclassify her position properly form [sic] 2009 through 2012 ...; discriminated against her in the evaluation of her performance ...; and denied Ms. Lapera a promotion to the position of Vice President of Planning and Alignment .... ” Id. ¶ 35. As relief, Ms. Lapera seeks a declaration that Fannie Mae violated the DCHRA and § 1981; a permanent injunction prohibiting Fannie Mae from engaging in any discriminatory employment practices; back pay and front pay in an amount to be determined at trial; an order prohibiting Fannie Mae from retaliating against Ms. Lapera or any other person for participating in this case; compensatory and punitive damages in amounts to be determined by an arbitrator; reasonable attorneys’ fees, expert fees, and costs; and pre-judgment and post-judgment interest. Id. at 11. Fannie Mae’s motion for summary judgment is now ripe for consideration. II. LEGAL STANDARD Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is properly granted against a party who, “after adequate time for discovery and upon motion, ... fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden to demonstrate the “absence of a genuine issue of material fact” in dispute, id. at 323, 106 S.Ct. 2548, while the nonmoving party must present specific facts supported by materials in the record that would be admissible at trial and that could enable a" }, { "docid": "21821474", "title": "", "text": "‘an employer has asserted a legitimate, non-discriminatory reason for the decision.’” Walker, 170 F.Supp.3d at 104, 2016 WL 1118252, at *6 (quoting Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008) (emphasis in original)). In such cases, Brady instructs the Court to bypass McDonnell Douglas and instead consider “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 ... ?” Brady, 520 F.3d at 494. To answer this question, the Court will consider “all the evidence, including ‘(1) the plaintiffs prima facie case; (2) any evidence the plaintiff presents to attack the employer’s proffered explanation for its action; and (3) any further evidence of discrimination that may be available to the plaintiff (such as independent evidence of discriminatory statements or attitudes on the part of the employer).’ ” Carter v. George Wash. Univ., 387 F.3d 872, 878 (D.C.Cir.2004) (quoting Waterhouse v. Dist. of Columbia, 298 F.3d 989, 992-93 (D.C.Cir.2002)). 2. DCHRA The DCHRA prohibits discrimination on the basis of, among other things, “race, ... age, [and] personal appearance.” D.C. Code § 2-1401.01. As relevant here, the DCHRA expressly provides that an employer may not “fail or refuse to hire, or to discharge, any individual; or otherwise to discriminate against any individual, with respect to his compensation, terms, conditions, or privileges of employment, including promotion; or to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee.” D.C. Code § 2-1402.11. DCHRA claims are evaluated under the same framework as § 1981 claims. See Pitts v. Howard Univ., 111 F.Supp.3d 9, 24 (D.D.C.2015) (citing Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 576 (D.C.Cir.2013)). That is, in the absence of direct evidence of discrimination, the Court employs McDonnell Douglas to decide whether a plaintiff has marshaled enough evidence to take her claims to a jury. Olatunji, 958 F.Supp.2d at" }, { "docid": "21821490", "title": "", "text": "or personal-appearance animus. See Brady, 520 F.3d at 495; Primas v. Dist. of Columbia, 719 F.3d 693, 697 (D.C.Cir.2013) (“Without overt evidence of discriminatory intent, [the plaintiffs] case turns on her attempts to show ‘that the defendant’s explanation is unworthy of credence’ and that a jury could ‘reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.’ ” (quoting Reeves, 530 U.S. at 147, 120 S.Ct. 2097)). As noted, in addressing her salary leveling claims, Ms. Lapera does not so much as mention pretext, let alone point to evidence in the record that creates as a genuine issue of material fact as to whether the Compensation Department acted with a discriminatory motive in leveling Ms. Lapera’s salary or in later declining to adjust her salary grade. Accordingly, Fannie Mae is entitled to summary judgment on Ms. Lapera’s salary leveling claims. 3. Non-Selection Claims Ms. Lapera’s complaint asserts that Fannie Mae discriminated against her on the basis of her race and personal appearance when Fannie Mae passed over Ms. Lapera for the position of Vice President of Planning and Alignment and instead hired Ms. Fraser. Compl. ¶¶ 30, 35. In particular, Ms. Lapera argues that Ms. Gehring declined to promote Ms. Lapera because she was Hispanic and overweight and that Ms. Gehring chose Ms. Fraser for the position because she was Caucasian and slender. Pl.’s Opp’n at 24. “Where, as here, the employer claims a legitimate, nondiscriminatory explanation for its decision to promote one employee over another, the ‘one central inquiry’ on summary judgment is ‘whether the plaintiff 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 plaintiff on a prohibited basis.’ ” Hamilton v. Geithner, 666 F.3d 1344, 1351 (D.C.Cir.2012) (quoting Adeyemi, 525 F.3d at 1226). In addressing this question, the Court considers “ ‘the total circumstances of the case,’ asking ‘whether the jury could infer discrimination from the combination of (1) the plaintiffs prima facie case; (2) any evidence the plaintiff" }, { "docid": "21821455", "title": "", "text": "MEMORANDUM OPINION Beryl A. Howell, Chief Judge The plaintiff, Ana Lapera, brings this lawsuit against her former employer, the Federal National Mortgage Association (“Fannie Mae”), alleging race discrimination in violation of the Civil Rights Act, 42 U.S.C. § 1981, and age, race, and personal-appearance discrimination in violation of the D.C. Human Rights Act (“DCHRA”), D.C. Code Ann. § 2-1401 et seq. Compl. ¶¶ 1, 4, ECF No. 1-1. These claims are predicated on Ms. Lapera’s allegations that Fannie Mae improperly classified her position’s salary grade (and rejected Ms. Lapera’s subsequent requests to relevel her salary grade), and declined to promote her on the basis of her race, age, and physical appearance. Pending before the Court is Fannie Mae’s motion for summary judgment. Def.’s Mot. Summ. J. (“Def.’s MSJ”), ECF No. 11. For the reasons set forth below, this motion is granted in part and denied in part. Specifically, while Ms. Lapera has shown no genuine issue of material fact as to whether Fannie Mae discriminated against her on the basis of her race or personal appearance when it leveled her salary, she has adduced sufficient evidence to raise such an issue with respect to whether Fannie Mae’s proffered reason for passing over Ms. Lapera for the position of Vice President of Planning and Alignment was pretextual. I. BACKGROUND The pertinent factual and procedural history for consideration of the pending motion for summary judgment is summarized below. A. Facts Ms. Lapera was born in Caracas, Venezuela, Plaintiffs Arbitration Transcript (“PL’s Arb. Tr.”) at 28, ECF No. 14-1, and describes herself as having “a body size which may be perceived by some as being overweight,” Compl. ¶ 6. She holds a degree in systems engineering from a school in Venezuela as well as a master’s degree in engineering administration from George Washington University. PL’s Arb. Tr. at 29. Ms. Lapera was employed by Fannie Mae, “a private, shareholder-owned company chartered by Congress,” Defi’s Statement of Undisputed Facts (“Def.’s SUF”) ¶ 1, ECF No. 11-1, in various positions for almost twenty years, from 1994 through 2013, PL’s Arb Tr. at 29. Her career" }, { "docid": "21821471", "title": "", "text": "record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.’ ” Lash v. Lemke, 786 F.3d 1, 6 (D.C.Cir.2015) (quoting Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)). The Court is required to consider only the materials explicitly cited by the parties, but may on its own accord consider “other materials in the record.” Fed. R. Civ. P. 56(c)(3). III. DISCUSSION Ms. Lapera asserts that Fannie Mae discriminated against her on the basis of her age, race, and personal appearance by leveling her salary at the “M” level and by selecting a different candidate for the Vice President of Planning and Alignment position. These claims are addressed seriatim below after first explaining the applicable legal framework. A. Statutory Overview 1. Section 1981 Section 1981 guarantees the rights of all persons, regardless of their race, to “make and enforce contracts.” 42 U.S.C. § 1981(a). The statute defines the phrase “make and enforce contracts” as “including the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” Id. § 1981(b). A plaintiff asserting an employment discrimination claim under § 1981 “must demonstrate by a preponderance of the evidence that the actions taken by the employer were ‘more likely than not based on the consideration of ... race.’ ” Pollard v. Quest Diagnostics, 610 F.Supp.2d 1, 18 (D.D.C.2009) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). “[T]he plaintiff may either prove his claim with direct evidence of discrimination or he may indirectly prove discrimination under the familiar burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Olatunji v. Dist. of Columbia, 958 F.Supp.2d 27, 31 (D.D.C.2013); accord Walker v. McCarthy, No. 14-266, 170 F.Supp.3d 94, 103-04, 2016 WL 1118252, at *5 (D.D.C. Mar. 22, 2016). Under McDonnell Douglas, discrimination claims are analyzed according to a three-step" }, { "docid": "15512153", "title": "", "text": "plaintiff the Staff Health Nurse position, but, as noted, the Red Cross had informed plaintiff no later than June 2, 2005, that she would not receive a pay increase. Thus, by June 2, the Red Cross had unequivocally notified plaintiff that’ she would be terminated effective July 1 unless she accepted the Staff Health Nurse position on compensation terms that she believed were discriminatory, and the “definite injury” that plaintiff claims to have suffered — the termination of her employment when she would not accept’ a discriminatory pay rate — should have been clear to her at that time. Indeed, plaintiff admitted that she “felt [she] was being cheated” and was preparing to sue as of June 3. (Powell Dep. at 217.) Accordingly, because-plaintiff did not file her cómplaint until June 9, 2006, her dis crimination claim is barred by the DCHRA’s one-year statute of limitations. B. Discrimination Claim Even if plaintiffs discrimination claim could be found to be timely, defendant would be entitled to summary judgment because plaintiff cannot prove pretext. The DCHRA makes it unlawful for an employer to take certain employment actions “wholly or partially for a discriminatory reason based upon the actual or perceived ... race ... of any individual,” including: [t]o fail or refuse to hire, or to discharge, any individual; or otherwise to discriminate against any individual, with respect to his compensation, terms, conditions, or privileges of employment, including promotion; or to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee. D.C.Code § 2-1402.11(a), (a)(1). Plaintiff claims that the Red Cross discriminated against her based on her race by offering her a position in a higher salary range with increased responsibilities without a corresponding pay increase and by terminating her employment when she refused to accept the position. (Am.Compl.lffl 29-30.) In considering claims brought under the DCHRA, the D.C. Court of Appeals applies the familiar burden-shifting test articulated by the Supreme Court for Title VII cases in McDonnell Douglas Corp. v. Green, 411" } ]

[ { "docid": "23482549", "title": "", "text": "would have concluded that a threat existed justifying the particular use of force. Id. at 396-97, 109 S.Ct. at 1871-72. A police officer may use deadly force when the officer has sound reason to believe that a suspect poses a threat of serious physical harm to the officer or others. Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). This circuit has recognized the doctrine of qualified immunity in excessive force cases, and the inquiry under Graham must reflect the considerations underlying the analysis of an immunity defense. See Slattery v. Rizzo, 939 F.2d 213 (4th Cir.1991). A reviewing court may not employ “the 20/20 vision of hindsight” and must make “allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving.” Graham, 490 U.S. at 396-97, 109 S.Ct. at 1872. The court’s focus should be on the circumstances at the moment force was used and on the fact that officers on the beat are not often afforded the luxury of armchair reflection. Greenidge v. Ruffin, 927 F.2d 789, 791-92 (4th Cir.1991) (citing Graham, 490 U.S. 386, 109 S.Ct. 1865). A. Appellees suggest that Elliott did not pose a real threat to the officers, noting that his hands were handcuffed behind his back, that he was placed in the front passenger seat with the seatbelt fastened and the window up, and that the officers were outside the car at the time of the shooting. Such a conclusion, however, is untenable in light of uncontroverted evidence that immediately before firing, Leavitt and Cheney confronted an intoxicated individual pointing a gun at them from only a few feet away with his finger on the trigger. The car window was no guarantee of safety when the pointed gun and the officers at whom it was aimed were in such close proximity. Moreover, expert testimony in the summary judgment record emphasized that even suspects with their hands handcuffed behind their backs have been able to position a concealed weapon so as to fire at an arresting officer." } ]

[ { "docid": "17146746", "title": "", "text": "judgment, the facts can therefore be summarized as follows. After a contentious and tense standoff with the police, in which Sigman threatened the police and was repeatedly instructed to come out of the house, Sigman stepped through the front door. His empty hands were clearly visible and raised in the air. Although the officers yelled at Sigman to halt, Sigman walked forward slowly, taking approximately three steps before he paused. As he began to move again, Officer Riddle shot him twice, fatally wounding him. It is under this set of facts that we must evaluate the ease. II. The basic issue of qualified immunity is simple. Law enforcement officers are entitled to immunity from suit whenever their use of deadly force is objectively reasonable. See Graham v. Connor, 490 U.S. 386, 394-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (Fourth Amendment not violated by objectively reasonable use of force); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396, (1982) (qualified immunity exists when “conduct does not violate clearly established ... constitutional rights of which a reasonable person would have known”). Such force is appropriate when an objectively reasonable officer could believe that the suspect poses a threat of serious physical harm to himself or others. See Graham, 490 U.S. at 397, 109 S.Ct. 1865; Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (deadly force). The reasonableness of this perception, and not whether the perception is ultimately correct, determines whether the officer is entitled to qualified immunity from civil lawsuits. See Gooden v. Howard County, 954 F.2d 960, 965 (4th Cir.1992) (en banc); see also Graham, 490 U.S. at 396, 109 S.Ct. 1865. The majority today affirms the district court’s dismissal on qualified immunity with two alternative rulings. First, it holds that the affidavits of three witnesses who saw Sigman exit his house with empty hands in the air “cannot effectively impact the credibility of Officer Riddle’s testimony ... as to his perceptions.” See ante at 788 (emphasis added). Alternatively, the majority holds that whether Sigman had a knife in his" }, { "docid": "22269014", "title": "", "text": "or denial of a motion for judgment as a matter of law. See Malone v. Microdyne Corp., 26 F.3d 471, 475 (4th Cir.1994). In considering a motion for judgment as a matter of law contrary to the jury’s findings, we construe the evidence in the light most favorable to the party against whom the motion was made and ask whether “there is substantial evidence in the record to support the jury’s findings.” Wilhelm v. Blue Bell, Inc., 773 F.2d 1429, 1433 (4th Cir.1985). Claims that law enforcement officers used excessive force when making an arrest “should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The standard of review is an objective one. Id. at 397, 109 S.Ct. 1865. The question is whether a reasonable officer in the same circumstances would have concluded that a threat existed justifying the particular use of force. Id. A police officer may use deadly force when the officer has “probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or others.” Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Moreover, “the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. A reviewing court must make “allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving.” Id. at 397, 109 S.Ct. 1865. “The court’s focus should be on the circumstances at the moment force was used and on the fact that officers on the beat are not often afforded the luxury of armchair reflection.” Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir.1996) (citations omitted), B. Anderson argues that it was proper for the jury to resolve the issue of excessive force because reasonable minds could differ as to whether Russell had probable cause to" }, { "docid": "6271611", "title": "", "text": "clearly established. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. To establish a violation of Williams’ Fourth Amendment rights against unreasonable seizure, the standard announced by the Supreme Court in Tennessee v. Garner applies: Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.... Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (quoting Garner, 471 U.S. at 8, 105 S.Ct. 1694 (citation omitted)). “As in other Fourth Amendment contexts, however, the ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” 490 U.S. at 397, 109 S.Ct. 1865. While, as the panel notes, we must be mindful of substituting “personal notions of proper police procedure” and the dangers of “analyzing the question at leisure,” it remains the duty of this court to apply the law to the facts and pronounce Miller’s actions objectively reasonable or unreasonable. Smith v. Freland, 954 F.2d 343, 347 (6th Cir.1992). As the Supreme Court states, the “calculus of reasonableness” is to be applied with “allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving,” but allowance does not require deference, and calculus must be performed with the proper purpose in mind — to determine whether sufficient" }, { "docid": "10208218", "title": "", "text": "to the excessive force claim, the Fourth Amendment requires us to ask, from the perspective of á reasonable officer on the scene, “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Relevant here, “[t]he use of deadly force is reasonable where an officer has probable cause to believe that a suspect poses a threat of serious physical harm to the officer or others.” Ellison v. Lesher, 796 F.3d 910, 916 (8th Cir. 2015) (quoting Loch v. City of Litchfield, 689 F.3d 961, 965 (8th Cir. 2012)). “But, where a person ‘poses no immediate threat to the officer and no threat to others,’ deadly force is not justified.” Id. ■ (quoting Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). On the claim that the officers unlawfully used deadly force against Franklin, the officers argue that the district court accepted nearly all of the facts provided by the officers as undisputed, including, importantly, that Franklin fought with the officers, gained control- of a sub-machine gun, shot two of them, and then struggled with an officer over control of the firearm. According to the officers, “[n]one of this was controverted below; all of it was assumed by the district court.” In fact, according to the officers, the district court accepted all of the facts presented and focused on only two additional facts— the alleged time gap and the absence of blood on the MP5—in its denial of qualified immunity. As to these facts, the officers argue that they are either not-material or are blatantly contradicted by the record. The problem with this argument, however, is that the district court did not hold that the facts relayed in its recitation were undisputed, and more importantly, we lack jurisdiction to review the factual issues that abound in this appeal. See Johnson, 515 U.S. at 313-18, 115 S.Ct. 2151. The officers argue that Franklin posed a threat of serious physical harm" }, { "docid": "22241878", "title": "", "text": "citations omitted). Thus, courts determine “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). In considering whether an officer used reasonable force, a court must focus on the moment that the force is employed. Elliott v. Leavitt, 99 F.3d 640, 643 (4th Cir.1996). At the summary judgment stage, once we have viewed the evidence in the light most favorable to the nonmovant, the question of whether the officer’s actions were reasonable is a question of pure law. Scott, 550 U.S. at 381 n. 8, 127 S.Ct. 1769. It is in light of these legal principles that we address whether the evidence, viewed in the light most favorable to Henry, shows that Purnell used objectively unreasonable force. A. A police officer who shoots a fleeing suspect without “probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others” violates that suspect’s Fourth Amendment rights. Tennessee v. Garner, 471 U.S. 1, 3, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). “Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.” Id. at 11, 105 S.Ct. 1694. The objective circumstances of this case are that Purnell shot a fleeing suspected misdemeanant whom he had no reason to believe was a threat. Henry had an eleven-day old warrant issued for a misdemeanor — failure to pay child support. Nothing in the record suggested Henry had any history of violence. That Henry had previously hidden his identity does not imply he was prone to aggression. Purnell had already been inside Henry’s home. Henry’s home address, wife’s identity, former employer, and employer’s car were all known. The officer also knew that Henry had left town to raise bail money and thereafter planned to return to pay for bail. When police approached Henry’s car," }, { "docid": "19412774", "title": "", "text": "or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given. Tennessee v. Garner , 471 U.S. 1, 11-12, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Determining whether the force was reasonable under the Fourth Amendment requires \"a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.\" Graham v. Connor , 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (internal quotation marks omitted). This reasonableness test \"requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.\" Id. \"The operative question in excessive force cases is 'whether the totality of the circumstances justifie[s] a particular sort of search or seizure.' \" Mendez , 137 S.Ct. at 1546 (quoting Garner , 471 U.S. at 8-9, 105 S.Ct. 1694 ). The test is objective reasonableness. Graham , 490 U.S. at 396, 109 S.Ct. 1865. A plaintiff must show the officer's use of force was objectively excessive from the perspective of a reasonable officer on the scene under the totality of the circumstances. Id. at 396-97, 109 S.Ct. 1865 ; Bell v. Irwin , 321 F.3d 637, 639 (7th Cir. 2003). We evaluate excessive-force claims for objective reasonableness based on the information the officers had at the time. Mendez , 137 S.Ct. at 1546-47. \"What is important is the amount and quality of the information known to the officer at the time he fired the weapon when determining whether the officer used an appropriate level of force.\" Muhammed v. City of Chi. , 316 F.3d 680, 683 (7th Cir. 2002) (citation omitted). The actual officer's subjective beliefs and motivations are irrelevant. Scott , 346 F.3d at 756. \"An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable" }, { "docid": "21940021", "title": "", "text": "is “reasonable” for the purposes of the Fourth Amendment when an officer “(1) ‘has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others’ or ‘that he has committed a crime involving the infliction or threatened infliction of serious physical harm’; (2) reasonably believes that the use of deadly force was necessary to prevent escape; and (3) has given some warning about the possible use of deadly force; if feasible.” Vaughan v. Cox, 343 F.3d 1323, 1329-30 (11th Cir.2003)[ ] (quoting Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)); see also Crosby v. Monroe County, 394 F.3d 1328, 1333 (11th Cir.2004) (“the ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officer’s actions are ‘objectively reasonable’ in light of the facts and circumstances confronting him, without regard to his underlying intent or motivation.”). Robinson, 415 F.3d at 1255. The district court determined that the force Gooding and Bauer used under the circumstances was reasonable. The court found that if Hart’s escape had been successful, his path of flight “could have posed” a threat of death or serious injury to the public or to other members of the SWAT Team. The plaintiffs argue that the mere possibility that others may be harmed is not enough to justify the use of deadly force, asserting that there must be an immediate and justifiable threat of harm. See Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989). The plaintiffs contend that numerous witnesses testified that no law enforcement officer or civilian was in the path of the Oldsmobile when the shots were fired. Although the facts must be taken in the light most favorable to the plaintiffs, the determination of reasonableness must be made from the perspective of the officer: The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight ... The calculus of reasonableness must" }, { "docid": "23167851", "title": "", "text": "Connor, 490 U.S. 386, 395-96, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). There is no dispute that the troopers “seized” Quick when they shot and killed him. See Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (holding that “apprehension by the use of deadly force is a seizure”). The question, instead, is whether the seizure was unreasonable. It is unreasonable for an officer to use deadly force against a suspect unless the officer has good reason “to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” Garner, 471 U.S. at 3, 105 S.Ct. 1694. In determining whether this standard was violated, we must remember that law enforcement officers “are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 397, 109 S.Ct. 1865. Thus, “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene”; Monday morning quarterbacking is not allowed. Id. at 396, 109 S.Ct. 1865; see also Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 65 L.Ed. 961 (1921) (Holmes, J.) (“Detached reflection cannot be demanded in the presence of an uplifted knife.”). Under this “standard of reasonableness at the moment,” Graham, 490 U.S. at 396, 109 S.Ct. 1865, an officer who uses deadly force in the mistaken belief that a suspect is armed will be forgiven so long as the mistake is reasonable and the circumstances otherwise justify the use of such force. See id. at 396, 109 S.Ct. 1865; Saucier, 533 U.S. at 205, 121 S.Ct. 2151; Curley v. Klem, 298 F.3d 271, 280 (3d Cir. 2002). In this case, the troopers were advised that local police were driving down the interstate in pursuit of a suspected car thief, later determined to be Quick. Car theft is a relatively serious (though not inherently violent) offense. When the troopers arrived at the scene, they were" }, { "docid": "22573736", "title": "", "text": "in the course of an arrest is properly analyzed under the Fourth Amendment, not under substantive due process. Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 1870-71, 104 L.Ed.2d 443 (1989). The Fourth Amendment provides, “The right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated.” To state a claim for excessive force as an unreasonable seizure under the Fourth Amendment, a plaintiff must show that a “seizure” occurred and that it was unreasonable. Brower v. County of Inyo, 489 U.S. 593, 599, 109 S.Ct. 1378, 1382-83, 103 L.Ed.2d 628 (1989). Abraham obviously was “seized” when shot. As the Supreme Court recognized in Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985), “there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” The pivotal question is when the use of deadly force is reasonable. Deadly force will only be considered reasonable, the Court held in Garner, when “it is necessary to prevent escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” 471 U.S. at 3, 105 S.Ct. at 1697. Applying this rule, Garner held unconstitutional a state statute that authorized officers to use deadly force, as the law in many states did at the time, against any felon fleeing or resisting arrest. The specific use of force challenged in Gamer was a police officer’s decision to shoot an eighth grader who had broken into an unoccupied house and stolen ten dollars and a purse, a crime that indisputably constituted a felony under state law. While investigating a call from a neighbor, the officer had walked behind the unoccupied house and spotted the decedent scaling a chain link fence. The officer called out to the decedent to stop and, when he did not, shot him in the back of the head. Although it was dark outside, the officer frankly admitted" }, { "docid": "56621", "title": "", "text": "party. Smith v. Virginia Commonwealth Univ., 84 F.3d 672, 675 (4th Cir.1996) (en banc). A. We first address whether the officers’ use of deadly force was justified under the circumstances. The constitutional right at issue in this case involves the Fourth Amendment’s prohibition against unreasonable seizures. The Supreme Court has held that “all claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). In assessing an excessive force claim under the Fourth Amendment, we apply an objective reasonableness standard: “the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397, 109 S.Ct. 1865. “A police officer may use deadly force when the officer has sound reason to believe that a suspect poses a threat of serious physical harm to the officer or others.” Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir.1996) (citing Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). A reviewing court must keep in mind that “police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving.” Graham, 490 U.S. at 397, 109 S.Ct. 1865. We must therefore judge reasonableness from the “perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396, 109 S.Ct. 1865. In the case before us, the officers were investigating a suspected burglary in progress. They came across Cox while searching the residence and attempted to rouse him to ascertain his identity. It is undisputed that Cox unexpectedly sat up and pointed a concealed rifle at Ford. Ford immediately yelled something to the effect of “get your hands up, police.” Harman confirmed that Ford gave Cox this verbal warning before they started shooting. Officers Jones, Conlon, and Mercer" }, { "docid": "22260859", "title": "", "text": "a constitutional right — the Hathaways argue that excessive force was used against their son. In order to succeed on this claim the Hathaways must first show that Jon-Eric Hathaway was seized within the meaning of the Fourth Amendment. Id. at 396. The Hathaways must then show “(1) an injury (2) which resulted directly and only from the use of force that was clearly excessive to the need and (3) the force used was objectively unreasonable.” Williams v. Bramer, 180 F.3d 699 (5th Cir.1999). The use of deadly force for apprehension is a seizure subject to the reasonableness requirement of the Fourth Amendment. Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Garner defined the circumstances under which the use of deadly force to stop a fleeing suspect is constitutionally reasonable. Id. at 11, 105 S.Ct. 1694. Specifically, [w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given. Id. at 11-12, 105 S.Ct. 1694. The reasonableness of an officer’s use of deadly force is therefore determined by the existence of a credible, serious threat to the physical safety of the officer or to those in the vicinity. And, critically, reasonableness in these circumstances “must embody allow- anee for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving- — -about the amount of force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Satisfaction of the first part of the qualified immunity test here turns on whether Jon-Eric Hathaway posed a threat so" }, { "docid": "20520134", "title": "", "text": "district court erred in concluding that Jordan’s rights were not violated and that House did not violate clearly established law. We reach only Cass’s first argument. See Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Although Jordan was not the intended target of House’s bullet, Cass’s claim on his behalf is properly assessed under the Fourth Amendment. See Fisher v. City of Memphis, 234 F.3d 312, 318-19 (6th Cir.2000). The Fourth Amendment’s prohibition against unreasonable seizures prohibits the use of excessive force against free citizens. Id. (citing Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). The test is one of objective reasonableness: “[T]he question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397, 109 S.Ct. 1865. We assess “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight,” id. (citing Tennessee v. Gamer, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)), among other case-specific factors. See Ciminillo v. Streicher, 434 F.3d 461, 467 (6th Cir.2006). In short, we ask whether the officer’s use of force was objectively reasonable in light of the totality of the circumstances as they would have appeared to a “reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. Tennessee v. Gamer provides the starting point for assessing the use. of deadly force against fleeing felony suspects. There, the Supreme Court held that the Fourth Amendment does not permit a police officer to “seize an unarmed, nondangerous suspect by shooting him dead.” 471 U.S. at 11, 105 S.Ct. 1694. At the same time, “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable" }, { "docid": "5589837", "title": "", "text": "Cir.1994). The first step is to determine whether the plaintiff has alleged a violation of a clearly established constitutional right. Id. There is no dispute that Colston has met this burden; the use of excessive force to apprehend a subject implicates the Fourth Amendment’s guarantee against unreasonable seizures. See Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985); Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The second step requires the court to determine whether Barnhart’s conduct was objectively reasonable under existing clearly established law. Harper, 21 F.3d at 600. In Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989), the Supreme Court explained that the reasonableness inquiry in an excessive force case is an objective one; evaluating the officer’s conduct under the Fourth Amendment we must balance the amount of force used against the need for that force with reference to clearly established law at the time of the conduct in question. Id. at 396, 109 S.Ct. at 1871-72; see also Spann v. Rainey, 987 F.2d 1110, 1115 (5th Cir.1993); Fraire, 957 F.2d at 1273. The Supreme Court instructs that in determining the reasonableness of Barnhart’s conduct, we are not to employ “the 20/20 vision of hindsight,” Graham, 490 U.S. at 396, 109 S.Ct. at 1872, and that we must consider “the fact that police officers are often forced to make split second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Id. at 396-97, 109 S.Ct. at 1872. We turn now to the issue of whether it was objectively reasonable for Barnhart to use deadly force, given the totality of the circumstances confronting him. Barnhart argues that it was objectively reasonable, under Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), for him to use deadly force because a reasonable officer in his circumstances would have believed that Colston posed a threat of serious bodily harm or death to himself or Langford. Colston maintains that it was not" }, { "docid": "7581200", "title": "", "text": "record, we believe the District Court likely assumed the plaintiffs version of the facts in denying Cox’s motion for qualified immunity. The question that we must answer, then, is whether a genuine question of material fact exists regarding whether Cox’s actions' — as defined by the plaintiffs version of the events — were objectively reasonable. Our review is de novo. A shooting is objectively reasonable when “the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical harm to the officer or others.” Tennessee v. Garner, 471 U.S. 1, 3, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). But “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). And we must remember “not to indulge in armchair quarterbacking or exploit the benefits of hindsight when evaluating police officers’ use of deadly force.” Gardner v. Buerger, 82 F.3d 248, 251 (8th Cir.1996). Having carefully considered this question, we believe that a genuine question of fact exists regarding whether Cox had probable cause to believe that Ribbey, who we assume (for purposes of this opinion only) was turning reflexively down and away from the breaking window, was reaching for a weapon, and thus posed a significant threat of death or serious physical harm to the officer or others. In so doing, we note that this case is readily distinguishable from cases in which the officer actually observed the decedent with a weapon. See, e.g., Mettler v. Whitledge, 165 F.3d 1197 (8th Cir.1999) (holding officers were entitled to qualified immunity where decedent, hiding in dark garage, shot police dog, and officers at door of garage a short distance away returned fire). Instead, this case is in many respects similar to Gardner, in which the officer, who admitted that the decedent never had or brandished a weapon, was afraid" }, { "docid": "1400519", "title": "", "text": "free from unreasonable seizures. A police officer’s use of deadly force constitutes a seizure within the meaning of the Fourth Amendment, and therefore it must be reasonable. See Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985); Muhammed v. City of Chicago, 316 F.3d 680, 683 (7th Cir.2002). In Tennessee v. Garner, the Supreme Court outlined the principles for evaluating whether the use of deadly force is reasonable under the Fourth Amendment: Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given. Garner, 471 U.S. at 11-12, 105 S.Ct. 1694; see Bell v. Irwin, 321 F.3d 637, 639 (7th Cir.2003). The fact-specific nature of whether an officer used excessive force depends on the totality of the circumstances surrounding the encounter. See Estate of Phillips v. City of Milwaukee, 123 F.3d 586, 592 (7th Cir.1997). The issue of whether an intentional use of deadly force by a police officer is permissible under the Fourth Amendment requires an objective reasonableness inquiry. See Graham v. Connor, 490 U.S. 386, 399, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The officer’s subjective belief or motivations are irrelevant. See id. at 397, 109 S.Ct. 1865 (“[E]vil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will ... good intentions make an objectively unreasonable use of force constitutional.”). The “particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396, 109 S.Ct. 1865; see Bell, 321 F.3d at 639; Estate of Phillips, 123 F.3d at 592. “[T]he question" }, { "docid": "308180", "title": "", "text": "Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). The right the Estate alleges was violated here is Waterman’s Fourth Amendment right to be free of unreasonable seizures, a right which includes seizures accomplished by excessive force. See Jones v. Buchanan, 325 F.3d 520, 527 (4th Cir.2003). The test for whether force employed to effect a seizure is excessive is one of “ ‘objective reasonableness’ under the circumstances.” Graham v. Connor, 490 U.S. 386, 399, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). In determining whether force was excessive, a court must weigh “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Id. at 396 (internal quotation marks omitted). Because “police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rap idly evolving,” id. at 397, 109 S.Ct. 1865, the facts must be evaluated from the perspective of a reasonable officer on the scene, and the use of hindsight must be avoided, see id. at 396, 109 S.Ct. 1865. Additionally, the reasonableness of the officer’s actions in creating the dangerous situation is not relevant to the Fourth Amendment analysis; rather, reasonableness is determined based on the information possessed by the officer at the moment that force is employed. See Elliott v. Leavitt, 99 F.3d 640, 643 (4th Cir.1996); Greenidge v. Ruffin, 927 F.2d 789, 792 (4th Cir.1991). Here, Appellants seized Waterman by shooting him. It is important to recognize that “[t]he intrusiveness of a seizure by means of deadly force is unmatched.” Tennessee v. Garner, 471 U.S. 1, 9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Nevertheless, a police officer may employ deadly force when the officer has “probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.” Id. at 11, 105 S.Ct. 1694. B. We now turn to the question of whether the record, viewed in the light most favorable to the Estate, shows that Appellants’ shooting of Waterman constituted an unreasonable seizure under the Fourth" }, { "docid": "22269023", "title": "", "text": "of the possibility of very serious impending criminal activity. Assuming, however, that the suspected criminal activity at issue was relatively minor, that factor would prove irrelevant to our excessive force analysis because our focus is on the circumstances as they existed at the moment force was used. See Elliott, 99 F.3d at 642; Greenidge, 927 F.2d at 791-92 (“In light of ... the Supreme Court’s focus on the very moment when the officer makes the ‘split-second judgments,’ ... events which occurred before Officer Ruffin opened the car door and identified herself to the passengers are not probative of the reasonableness of Ruffin’s decision to fire the shot.”) (emphasis added) (citing Graham, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443). At the precise moment that Russell used deadly force, he reasonably believed that Anderson posed a deadly threat to himself and others, making the nature of the suspected criminal activity at issue at the time Russell approached Anderson irrelevant. Russell ultimately was mistaken as to the nature and extent of the threat posed by Anderson, which resulted in a tragic consequence to Anderson. Nevertheless, as we stated in Elliott, “the Fourth Amendment does not require omniscience .... Officers need not be absolutely sure ... of the nature of the threat or the suspect’s intent to cause them harm-the Constitution does not require that certitude precede the act of self protection.” Elliott, 99 F.3d at 644; see also Reese v. Anderson, 926 F.2d 494, 501 (5th Cir.1991) (“Also irrelevant is the fact that Crawford was actually unarmed. Anderson did not and could not have known this. The sad truth is that Crawford’s actions alone could cause a reasonable officer to fear imminent and serious physical harm.”). Anderson’s actions unwittingly caused Russell to reasonably fear imminent and serious physical harm. Accordingly, we do not believe there is sufficient evidence to support the jury’s finding with respect to excessive force. Therefore, Russell is entitled to the entry of judgment as a matter of law as to Anderson’s excessive force claim. III. Russell’s split-second decision to use deadly force against Anderson was reasonable in" }, { "docid": "5914251", "title": "", "text": "to whether the defendant in fact committed those acts.” Russo, 953 F.2d at 1043. The real issue in this case, then, is whether, under the circumstances, the defendant police officers violated the decedent’s clearly-defined constitutional right which would be known to reasonable officers in defendants’ position. The Supreme Court has determined that [w]here ... [an] excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens* the right “to be secure in their persons ... against unreasonable ... seizures” of the person. Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). Police conduct is examined to determine “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their intent or motivation ... judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 397, 396, 109 S.Ct. at 1872. “The intrusiveness of a seizure by means of deadly force is unmatched. The suspect's fundamental interest in his own life need not be elaborated upon.” Tennessee v. Garner, 471 U.S. 1, 9, 105 S.Ct. 1694, 1700, 85 L.Ed.2d 1 (1985). Garner is the leading case on the constitutionality of the use of deadly force by police officers in the situation involving a fleeing felon. The Court reasoned: The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may" }, { "docid": "308181", "title": "", "text": "id. at 396, 109 S.Ct. 1865. Additionally, the reasonableness of the officer’s actions in creating the dangerous situation is not relevant to the Fourth Amendment analysis; rather, reasonableness is determined based on the information possessed by the officer at the moment that force is employed. See Elliott v. Leavitt, 99 F.3d 640, 643 (4th Cir.1996); Greenidge v. Ruffin, 927 F.2d 789, 792 (4th Cir.1991). Here, Appellants seized Waterman by shooting him. It is important to recognize that “[t]he intrusiveness of a seizure by means of deadly force is unmatched.” Tennessee v. Garner, 471 U.S. 1, 9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Nevertheless, a police officer may employ deadly force when the officer has “probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.” Id. at 11, 105 S.Ct. 1694. B. We now turn to the question of whether the record, viewed in the light most favorable to the Estate, shows that Appellants’ shooting of Waterman constituted an unreasonable seizure under the Fourth Amendment. Because Appellants argue only that the use of deadly force was justified by the threat Waterman posed to them and their fellow officers — as opposed to the general public — we confine our analysis to that issue. Thus, the question before us is whether a reasonable jury could conclude, based on the evidence forecast in the record, that a perception by the officers that Waterman posed a threat of serious physical harm to them would have been unreasonable. We conclude that no reasonable jury could reach that conclusion with regard to Appellants’ initial shots but that it could conclude that the shots fired after Waterman passed the officers were unconstitutional. We address the constitutionality of these two groups of shots seriatim. 1. When Waterman’s vehicle lurched forward, the officers were forced to immediately decide whether Waterman was attempting to assault the officers ahead of him or whether he intended only to drive by them, leaving them unharmed. To the extent that reasonable officers under these facts could have taken time to ponder whether" }, { "docid": "7693435", "title": "", "text": "the plaintiff, establishes a violation of a constitutional or statutory right, and (2) the right was clearly established at the time of the violation. See Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The Lochs’ claim of excessive force is governed by the Fourth Amendment’s prohibition against unreasonable seizures. See Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The reasonableness of a use of force turns on whether the officer’s actions were objectively reasonable in light of the facts and circumstances confronting him, without regard to his subjective intent or motivation. Id. at 397, 109 S.Ct. 1865. We must consider the totality of the circumstances, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether the suspect is actively fleeing or resisting arrest. Id. at 396, 109 S.Ct. 1865. The use of deadly force is reasonable where an officer has probable cause to believe that a suspect poses a threat of serious physical harm to the officer or others. See Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). We judge the reasonableness of Rueckert’s use of force “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. The Lochs argue that the force used was excessive under the circumstances. They emphasize that Rueckert never saw a firearm before he shot Cassidy. In the Lochs’ view, Rueckert’s explanation of seeing a black object on Cassidy’s hip is not credible, because he did not mention that observation until several hours after the shooting. The Lochs also note that several people at the scene yelled to Rueckert that Cassidy was unarmed as he approached the officer, and they emphasize that Cassidy’s arms were raised or extended at his sides, suggesting that he was trying to comply with the officer’s orders. Finally, the Lochs point out that Rueckert did not warn Cassidy that he would" } ]

[ { "docid": "20859165", "title": "", "text": "that Congress did not intend to import into RICO all of the restrictive anti-trust standing requirements. Justices Marshall, Brennan, Black-mun and Powell dissented in Sedima because they would have allowed recovery only for racketeering injury. They reasoned that “Congress’ concern was not for the direct victims ..; whom state and federal law already protected, but for the competitors and investors whose businesses and interests are harmed ... or whose competitive positions decline because of infiltration in the relevant market.” 473 U.S. at 519, 105 S.Ct. at 3302 (Marshall, J., dissenting). The majority evidently agreed that at least some kinds of indirect injury are recoverable, since they stated that “damages include, but are not limited to, the sort of competitive injury for which the dissenters allow recovery.” 473 U.S. 497, n. 15, 105 S.Ct. at 3286 n. 15. However, the facts of Sedima did not require either the majority or the dissent to consider the limits on either direct or indirect recovery. That is the question presented here. A. Proximate Cause It is clear that both direct and indirect injuries must be proximately caused. “A defendant who violates section 1962 is not liable for treble damages to everyone he might have injured by other conduct,” but only to anyone whose injuries were caused “ ‘by reason of a violation of section 1962.” Haroco, Inc. v. American National Bank and Trust Co., 747 F.2d at 398. “[Tjhis ‘by reason of' language ... imposes a proximate cause requirement on plaintiffs.” Id. However, “despite the manifold attempts which have been made to clarify the subject [of proximate cause, there is not] yet any general agreement as to the best approach,” either in torts or as applied to RICO. Prosser at 263 (footnote omitted). We believe that plaintiffs cannot show that their injuries were proximately caused either directly or indirectly by Boesky’s racketeering violation. 1. Injury Caused Directly by the Predicate Acts Plaintiffs apparently acknowledge that their injury was not caused directly by Boesky’s predicate crimes. The commercial bribes did not elicit information about companies with which plaintiffs had any connection. The alleged wire and" } ]

[ { "docid": "16508147", "title": "", "text": "injury he suffered is the diminution of the value of his investment fil the limited partnership.” Arthur Andersen Memorandum in Support at 53 (quoting Attick v. Valeria Associates, L.P., 835 F.Supp. 103 (S.D.N.Y.1992)). Since such an injury is “derivative” of the injury suffered by the limited partnership, Arthur Andersen asserts that only the limited partnership may recover under RICO. Id. Contending that the plaintiffs’ sole alleged economic injury is the diminution in the value of their investments, Arthur Andersen argues that the plaintiffs lack standing to bring their RICO claims. The court disagrees. A RICO plaintiff “only has standing, if, and can only recover to the extent that, he has been injured in his business or property by [reason of! the conduct constituting the violation.\" Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985) (emphasis added). In other words, the defendant’s conduct must have been the proximate cause of the plaintiffs injury. See Holmes v. Securities Investor Protection Corp., - U.S. -, -, 112 S.Ct. 1311, 1318, 117 L.Ed.2d 532 (1992); Standardbred Owners Ass’n v. Roosevelt Raceway, 985 F.2d 102, 104 (2d Cir.1993); Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23-24 (2d Cir.1990). The test of proximate cause is whether the defendant’s acts “ ‘are a substantial factor in the sequence of responsible causation,’ and whether ‘the injury is reasonably foreseeable or anticipated as a natural consequence.’ ” Standardbred Owners Ass’n, 985 F.2d at 104 (quoting Hecht, 897 F.2d at 23-24). The purpose of this rule is “to preclude recovery by plaintiffs who ‘complaint ] of harm flowing merely from the misfortunes visited upon a third person.’ ” Id. (quoting Holmes, - U.S. at -, 112 S.Ct. at 1318, and citing Rand v. Anaconda-Ericsson, Inc., 794 F.2d 843, 849 (2d Cir.) (corporate shareholders or creditors suing for injuries to the corporation), cert. denied, 479 U.S. 987, 107 S.Ct. 579, 93 L.Ed.2d 582 (1986)). Thus, the proximate causation test would mandate the result suggested by Arthur Andersen in cases where the plaintiffs injury is wholly the product of another’s injury. In" }, { "docid": "22102935", "title": "", "text": "it will suffer, if any, are yet to be determined. B. The Ripeness of FNB’s RICO Injury The rule of fraud damages described above has been adopted by this court in the context of deciding whether a defrauded plaintiff has standing under RICO. A RICO plaintiff “only has standing if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985); see Hecht, 897 F.2d at 23. Furthermore, as a general rule, a cause of action does not accrue under RICO until the amount of damages becomes clear and definite. See Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1106 (2d Cir.1988), cert. denied, 490 U.S. 1007, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989). Thus, a plaintiff who claims that a debt is uncollectible because of the defendant’s conduct can only pursue the RICO treble damages remedy after his contractual rights to payment have been frustrated. See Stochastic Decisions, Inc. v. DiDomenico, 995 F.2d 1158, 1166 (2d Cir.), cert. denied, — U.S. -, 114 S.Ct. 385, 126 L.Ed.2d 334 (1993). For example, in Stochastic Decisions the plaintiff, a judgment creditor of a bankrupt company, brought a RICO action claiming that the company fraudulently conveyed assets to prevent the plaintiff from collecting on several judgments. We held that to the extent plaintiff successfully collected on the judgments, those amounts would reduce the RICO injury pro tanto, before any trebling occurred. Id. at 1165-66. Because plaintiffs collection efforts were ongoing and the actual amount of its injury was indefinite and unprovable, plaintiff did not yet have standing under RICO. Similarly, in Commercial Union Assurance Co. pic v. Milken, 17 F.3d 608 (2d Cir.1994), RICO plaintiffs argued that they were “entitled to a trebling of their damage award before any offset through settlements, restitution, recoupment or otherwise.\" Id. at 612. The plaintiffs maintained that they were fraudulently induced into investing approximately $10.5 million, none of which had been recouped when they initiated suit, and" }, { "docid": "23598102", "title": "", "text": "recover only if injured “by reason of” a § 1962 violation. 18 U.S.C. § 1964(c) (1988). A § 1962(a) violation occurs not when the defendant engages in the predicate acts, but only when he uses or invests the proceeds of that activity in an enterprise. Consequently, to recover under § 1962(a), the plaintiff must demonstrate that his injuries were proximately caused by that violation. Courts have similarly imposed a proximate cause requirement for § 1962(c) claims, although a plaintiff may recover under that section for injury caused by the predicate acts themselves. See O’Malley v. O’Neill, 887 F.2d 1557, 1561 (11th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2620, 110 L.Ed.2d 641 (1990); Zervas v. Faulkner, 861 F.2d 823, 834-35 (5th Cir.1988); Brandenburg v. Seidel, 859 F.2d 1179, 1189 (4th Cir.1988); Sperber v. Boesky, 849 F.2d 60, 64-65 (2d Cir.1988); Haroco, Inc. v. American Nat’l Bank and Trust Co., 747 F.2d 384, 398 (7th Cir.1984), aff’d, 473 U.S. 606, 105 S.Ct. 3291, 87 L.Ed.2d 437 (1985) (per curiam). See generally Note, After Sedima: The Lower Courts’ Use of Proximate Cause as a Limitation on Civil RICO, 16 Del. J.Corp.L. 607 (1991). Following traditional concepts of causation, we believe § 1962(a) requires the plaintiff to demonstrate that the use or investment of racketeering income was a “substantial factor” in causing the injury. As the Court of Appeals for the Second Circuit has held in connection with the § 1962(c) standing requirement, “the RICO pattern or acts proximately cause a plaintiff’s injury if they are a substantial factor in the sequence of responsible causation, and if the injury is reasonably foreseeable or anticipated as a natural consequence.” Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23-24 (2d Cir.1990). We believe the evidence is insufficient to create a material issue of fact as to whether defendants’ use or investment of racketeering income was a substantial factor in causing plaintiffs to pay higher prices for the degradable bags. The causal connection is tenuous at best. The direct cause of plaintiffs’ alleged injuries was the fraudulent conduct. Plaintiffs have neither alleged nor demonstrated" }, { "docid": "8046034", "title": "", "text": "not altogether intuitive, the Supreme Court has made clear that a “ ‘defendant who violates section 1962 is not liable for treble damages to everyone he might have injured by other conduct.’ ” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985) (citation omitted). Instead, a “plaintiff only has standing [under 1964(c)] if, and may recover only to the extent that, he has been injured in his business or property by the conduct constituting the violation____” Id. Thus, in order to have standing to sue under RICO, the alleged injury must be caused by a pattern of racketeering activity violating section 1962 or by individual RICO predicate acts, and the RICO pattern or acts must proximately cause the alleged injury. Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23 (2d Cir.1990); see also Holmes v. Securities Investor Protection Corp., — U.S. -, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992) (right to sue under RICO requires a direct, proximate relation between the injury asserted and the injurious conduct alleged). The RICO pattern or acts proximately cause a plaintiff’s injury “if they are a substantial factor in the sequence of responsible causation and if the injury is reasonably foreseeable or anticipated as a natural consequence.” Hecht, 897 F.2d at 23-24 (citations omitted). Courts in this Circuit have had numerous opportunities to apply these generalized principles to employees’ specific claims that they were fired or otherwise penalized for disclosing or refusing to participate in the allegedly unlawful actions of their employers. In each case, the courts have concluded that any injury flowing from the employer’s retaliatory conduct was not sufficiently proximate to the alleged RICO violations to confer standing on the employee. See, e.g., Hecht v. Commerce Clearing House, Inc., 897 F.2d 21 (2d Cir.1990) (no standing for employee alleging loss of employment and commissions resulting from his refusal to cooperate in employer’s mail and wire fraud scheme); Norman v. Niagara Mohawk Power Corp., 873 F.2d 634 (2d Cir.1989) (no standing for employees claiming harassment in retaliation for blowing the whistle on employer’s violations" }, { "docid": "22198858", "title": "", "text": "show injury “by the conduct constituting the violation” of RICO, see Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985), the injury must be caused by a pattern of racketeering activity violating section 1962 or by individual RICO predicate acts. See Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1100 (2d Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989). Moreover, the RICO pattern or acts must proximately cause plaintiff’s injury. See Sperber v. Boesky, 849 F.2d 60, 64 (2d Cir.1988); O’Malley, 887 F.2d at 1561. By itself, factual causation (e.g., “cause-in-fact” or “but for” causation) is not sufficient. See Sperber, 849 F.2d at 63. We recognize that determining what is the proximate cause of an injury is not free from normative legal policy considerations. See id. (citing to W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts 264 (5th ed. 1984); Restatement (Second) of Torts § 431 comment a (1965); Howarth, “On Madness of Discourse, That Cause Sets Up with and Against Itself!” (Book Review), 96 Yale L.J. 1389, 1394-95 (1987). For our purposes, the RICO pattern or acts proximately cause a plaintiff’s injury if they are a substantial factor in the se quence of responsible causation, and if the injury is reasonably foreseeable or anticipated as a natural consequence. See Bonsignore v. City of New York, 683 F.2d 635, 637 (2d Cir.1982); Restatement (Second) of Torts §§ 431, 435 comment b (1965). 1. Standing for Defendants’ Section 1962(c) Violation Hecht’s first ground of appeal is that racketeering conduct violating section 1962(c) caused him injury in the form of lost business commissions. This injury is too speculative to confer standing, because Hecht only alleges that he would have lost commissions in the future, and not that he has lost any yet. Even assuming that Hecht actually lost commissions, we hold that his injury was not proximately caused by violations of section 1962(c). We previously have held that loss of employment (as distinct from loss of commissions) for reporting or" }, { "docid": "22818483", "title": "", "text": "of fact does not entitle it to return a verdict based on only confusion, speculation or prejudice; its verdict must be reasonably based on evidence presented at trial. Michelman v. Clark-Schwebel Fiber Glass Corp., 534 F.2d 1036, 1042 (2d Cir.), cert. denied, 429 U.S. 885, 97 S.Ct. 236, 50 L.Ed.2d 166 (1976); see Armstrong v. Commerce Tankers Corp., 423 F.2d 957, 959-60 (2d Cir.), cert. denied, 400 U.S. 833, 91 S.Ct. 67, 27 L.Ed.2d 65 (1970). Applying this standard, we conclude that the LILCO defendants are entitled to judgment n.o.v. based upon the insufficiency of Suffolk’s evidence. The RICO statute states that those persons injured “by reason of” a RICO violation may maintain a civil RICO claim. 18 U.S.C. § 1964(c). “The phrase ‘by reason of’ requires that there be a causal connection between the prohibited conduct and plaintiff’s injury.” Norman v. Niagara Mohawk Power Corp., 873 F.2d 634, 636 (2d Cir.1989); see also Sedima, 473 U.S. at 496, 105 S.Ct. at 3285 (plaintiff “can only recover to the extent that[] he has been injured in his business or property by the conduct constituting the violation”); Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23 (2d Cir.1990) (“RICO pattern or acts must proximately cause plaintiff’s injury.”). In the context of this case, which involves RICO mail fraud claims, this means that it was necessary for Suffolk to demonstrate at trial that LILCO’s misrepresentations to the PSC were relied upon by the PSC, see Brandenburg v. Seidel, 859 F.2d 1179, 1188 n. 10 (4th Cir.1988); Shaw v. Rolex Watch U.S.A., Inc., 726 F.Supp. 969, 972 (S.D.N.Y.1989), and that such misrepresentations caused LILCO’s rate increases to be granted. We believe the trial evidence, in the permanent phase of the 1977-78 Rate Case and the permanent phase of the 1983-84 Rate Case is insufficient to demonstrate the required causal connection between Suffolk’s alleged injury and the LILCO defendants’ conduct. We also believe that, because the fraud alleged in the temporary phase of the 1977-78 Rate Case was corrected in the permanent phase, no damages reasonably can be assessed against LILCO for its" }, { "docid": "22102934", "title": "", "text": "inducement to make the loan.”). In determining fraud damages, any amount recovered by the fraudulently induced lender necessarily reduces the damages that can be claimed as a result of the fraud. Because the fraud defendant is not liable for all losses that may occur, but only for those actually suffered, only after the lender has exhausted the bargained-for remedies available to it can the lender assert that it was damaged by the fraud, and then only to the extent of the deficiency. FNB does not allege actual injury by simply claiming that it incurred additional risk of loss as a consequence of the fraud. See Berg v. First State Ins. Co., 915 F.2d 460, 464-65 (9th Cir.1990) (rejecting corporate directors’ claim that they suffered injury when insurance policies protecting them against risk of loss from shareholder derivative suit were can-celled, even though suit resulted in no award against them). Thus, we reject FNB’s novel theory that it was damaged simply by being undersecured when, with respect to those loans not yet foreclosed, the actual damages it will suffer, if any, are yet to be determined. B. The Ripeness of FNB’s RICO Injury The rule of fraud damages described above has been adopted by this court in the context of deciding whether a defrauded plaintiff has standing under RICO. A RICO plaintiff “only has standing if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985); see Hecht, 897 F.2d at 23. Furthermore, as a general rule, a cause of action does not accrue under RICO until the amount of damages becomes clear and definite. See Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1106 (2d Cir.1988), cert. denied, 490 U.S. 1007, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989). Thus, a plaintiff who claims that a debt is uncollectible because of the defendant’s conduct can only pursue the RICO treble damages remedy after his contractual rights to payment have been frustrated." }, { "docid": "14916410", "title": "", "text": "establish an injury to his business or property “by reason of’ the alleged racketeering activity. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) (“[A] plaintiff ... can only recover to the extent that[ ] he has been injured in his business or property by the conduct constituting the violation.”); Bankers Trust Co. v. Rhoades, 741 F.2d 511, 516 (2d Cir.1984), vacated and remanded on other grounds, 473 U.S. 922, 105 S.Ct. 3550, 87 L.Ed.2d 673 (1985), on remand, 859 F.2d 1096 (2d Cir.1988) (“the requirement that the injury be ‘by reason of a violation of § 1962 means that there must be a causal connection between the prohibited conduct and the plaintiffs proprietary injury. Thus, it is insufficient for a plaintiff to prove simply a violation by the defendants and a proprietary injury; it must prove that the defendant’s violation caused the injury.”); Douglas E. Abrams, The Law of Civil RICO § 3.3.1 (1991) (“[Section 1964(c)’s ‘by reason of language requires proof that the violation caused the plaintiffs proprietary injury.”). The “by reason of’ language requires both factual, “but for,” causation and “proximate” causation. See Commercial Cleaning Servs., L.L.C. v. Colin Serv. Sys., Inc., 271 F.3d 374, 380 (2d Cir.2001) (“RICO’s use of the clause ‘by reason of has been held to limit standing to those plaintiffs who allege that the asserted RICO violation was the legal, or proximate, cause of their injury, as well as a logical, or ‘but for,’ cause.”). a. Factual causation Factual causation is a requirement of every tort. See generally Dan B. Dobbs, The Law of Torts § 166 (cause in fact requirement). It is eommonsensical: if a defendant’s action cannot be linked to a harm suffered by plaintiff, he cannot be held liable for it. b. Proximate causation The term “proximate causation” is used “to label generically the judicial tools used to limit a person’s responsibility for the consequences of that person’s own acts.” Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 268, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992). As it has with" }, { "docid": "22198857", "title": "", "text": "argues that defendants’ racketeering conduct violating section 1962(c) proximately caused him to lose not only his job but also business commissions, thus distinguishing his case from the line of cases relied on by the district court. Second, he argues that an overt act in furtherance of defendants’ conspiracy to racketeer was his discharge from employment and that such an act suffices to create civil liability under section 1962(d). Hecht also argues that he properly pleaded a RICO conspiracy, and that, even if he did not, he should be permitted to amend his complaint. DISCUSSION The RICO civil liability provision confers standing on “[a]ny person injured in his business or property by reason of a violation of section 1962.” 18 U.S.C. § 1964(c). Thus, in order to have standing, a plaintiff must show: (1) a violation of section 1962; (2) injury to business or property; and (3) causation of the injury by the violation. See O’Malley v. O’Neill, 887 F.2d 1557, 1561 (11th Cir.1989). This appeal principally concerns the last element: causation. Because a plaintiff must show injury “by the conduct constituting the violation” of RICO, see Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985), the injury must be caused by a pattern of racketeering activity violating section 1962 or by individual RICO predicate acts. See Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1100 (2d Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989). Moreover, the RICO pattern or acts must proximately cause plaintiff’s injury. See Sperber v. Boesky, 849 F.2d 60, 64 (2d Cir.1988); O’Malley, 887 F.2d at 1561. By itself, factual causation (e.g., “cause-in-fact” or “but for” causation) is not sufficient. See Sperber, 849 F.2d at 63. We recognize that determining what is the proximate cause of an injury is not free from normative legal policy considerations. See id. (citing to W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts 264 (5th ed. 1984); Restatement (Second) of Torts § 431 comment a (1965); Howarth, “On Madness of" }, { "docid": "582205", "title": "", "text": "plaintiff has standing to bring the RICO claims she asserts in her Complaint. “Section 1964(c) of Title 18 of the United States Code authorizes private actions for treble damages for ‘[a]ny person injured in [her] business or property by reason of a violation of [the RICO Act’s substantive provisions].’ ” Burdick v. American Express Co., 677 F.Supp. 228, 229 (S.D.N.Y.1988) (citation omitted in original). Furthermore, a plaintiff only has standing if she has been proximately injured in her business or property by the conduct constituting the violation. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496-97, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985). The RICO standing requirement is satisfied only if plaintiff demonstrates that the commission of the RICO predicate acts proximately caused her injury. In re American Express Co. Shareholder Litig., 39 F.3d 395, 399 (2d Cir.1994). A defendant who violates § 1962 is not liable for treble damages to everyone he might have injured by alleged violations, but only to those who can establish a direct relationship between their asserted injury and the injurious conduct. Burdick v. American Express Co., 865 F.2d 527, 529 (2d Cir.1989). A remotely related injury is insufficient to support a claim under RICO. Id. The Second Circuit’s position on retaliatory discharges is unambiguous — loss of employment, does not constitute an injury to business or property sufficient to satisfy RICO’s standing requirement. See Id. (the purpose of civil RICO liability does not extend to deterring any illegal act such as retaliatory firings for which there are state and common law remedies); Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 24 (2d Cir.1990); see also O’Malley v. O’Neill, 887 F.2d 1557, 1563 (11th Cir.1989); Cullom v. Hibernia Nat’l Bank, 859 F.2d 1211, 1216 (5th Cir.1988). “Although [plaintiff’s] loss of employment may have been factually caused by defendants’ RICO violations, it was not a foreseeable natural consequence sufficient for proximate causation.” Hecht, 897 F.2d at 24. Accordingly, plaintiff does not have standing based on her termination. Attempting to overcome the hurdle presented by the Second Circuit’s position on retaliatory loss of employment, plaintiff" }, { "docid": "23147424", "title": "", "text": "within a ten year period. 18 U.S.C. § 1961(5). In addition, the predicate acts must demonstrate “sufficient interrelationship and ... sufficient continuity or threat of continuity to constitute [a prohibited] pattern.” Beauford v. Helmsley, 865 F.2d 1386, 1391 (2d Cir.) (in banc), vacated and remanded, 492 U.S. 914, 109 S.Ct. 3236, 106 L.Ed.2d 584, adhered to, 893 F.2d 1433 (2d Cir.) (in banc), cert. denied, 493 U.S. 992, 110 S.Ct. 539, 107 L.Ed.2d 537 (1989); see also Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 n. 14, 105 S.Ct. 3275, 3285 n. 14, 87 L.Ed.2d 346 (1985). To invoke RICO’s civil remedies, a plaintiff must have been “injured in his business or property by reason of a violation of section 1962.” § 1964(c) (emphasis added). This language has been construed to require that in order to merit standing, a civil RICO plaintiff must establish that the RICO violation at issue was a proximate cause of the injury to the plaintiffs business or property for which redress is sought. See Holmes v. Securities Investor Protection Corp., — U.S. -, -, 112 S.Ct. 1311, 1318, 117 L.Ed.2d 532 (1992); Manson v. Stacescu, 11 F.3d 1127, 1130 (2d Cir.1993); Stochastic Decisions, Inc. v. DiDomenico, 995 F.2d 1158, 1167 (2d Cir.), cert. denied, — U.S. -, 114 S.Ct. 385, 126 L.Ed.2d 334 (1993); Standardbred Owners Ass’n v. Roosevelt Raceway Assocs., 985 F.2d 102, 104 (2d Cir.1993); Metromedia Co. v. Fugazy, 983 F.2d 350, 368 (2d Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993); Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23 (2d Cir.1990); Sperber v. Boesky, 849 F.2d 60, 64 (2d Cir.1988). Dobrowolski and Trapanotto primarily rely upon Hecht in seeking reversal on this issue. In Hecht, we affirmed the dismissal of a RICO complaint brought by a discharged employee who claimed that he had been terminated because he had “blown the whistle” on mail fraud and wire fraud committed by other employees in dealing with customers’ accounts. 897 F.2d at 23. We ruled that the claimed “injury must be caused by a pattern of racketeering" }, { "docid": "20325069", "title": "", "text": "any federal case, plaintiffs must satisfy the familiar “injury-in-fact” standard required by Article III. Second, section 1964(c) expressly conditions standing on “injury to business or property.” Different circuits accordingly have fashioned rules allowing standing only, for example, to plaintiffs complaining of commercial harm or “concrete financial loss.” E.g., Town of West Hartford v. Operation Rescue, 915 F.2d 92, 103-04 (2d Cir.1990) (holding that “business or property” refers only to “commercial interests or enterprises”); Oscar v. University Students Co-op. Ass’n, 965 F.2d 783, 785 (9th Cir.) (requiring “concrete financial loss, and not mere injury to a valuable intangible property interest”), cert. denied, 506 U.S. 1020, 113 S.Ct. 655, 121 L.Ed.2d 581 (1992). Other than the statutory requirement that a plaintiffs injury must be in the nature of harm to business or property, however, RICO imposes no “heightened” standing threshold. In Sedima, the Supreme Court held that the statute’s plain language requires only that the plaintiff “has been injured in his business or property by the conduct constituting the violation.” 473 U.S. at 496, 105 S.Ct. at 3285. “[T]he statute requires no more than this.” Id. at 497, 105 S.Ct. at 3285. Sedima thereby foreclosed an attempt by several circuits to limit the scope of RICO by granting standing only to plaintiffs alleging a “racketeering injury” distinct from any harm caused by predicate acts themselves. Id.; see also Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1100 (2d Cir.1988) (noting that section 1964(c) “contains no special limitation on standing”), cert. denied, 490 U.S. 1007, 109 S.Ct. 1643, 104 L.Ed.2d 158 (1989). Courts have not hesitated, however, to dismiss RICO claims for lack of standing where plaintiffs have failed to allege a sufficiently palpable injury to business or property. 1. “Concrete Fintmcial 'Loss” Addressing RICO’s statutory language first, defendants do not directly argue that plaintiffs have, failed to allege injury to “business or property” as a qualitative matter. Instead, defendants argue that plaintiffs have failed to allege “concrete financial loss,” the RICO injury requirement expressly imposed in the Ninth Circuit. See Oscar, 965 F.2d at 785, Defendants assert that “concrete financial loss” refers" }, { "docid": "2692685", "title": "", "text": "105 S.Ct. at 3280-81, and a pattern of activity requires proof of at least two such acts, 18 U.S.C. § 1961(5), “that were related and that amounted to or threatened the likelihood of, continued criminal activity.” H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). Plaintiffs must have been injured “by reason of’ defendants’ illegal activity. 18 U.S.C. § 1964(e). “The phrase ‘by reason of requires that there be a causal connection between the prohibited conduct and plaintiffs injury.” County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1311 (2d Cir. 1990) (quoting Norman v. Niagara Mohawk Power Corp., 873 F.2d 634, 636 (2d Cir. 1989)). Plaintiffs must plead “not only that the defendant’s violation was a ‘but for’ cause of [its] injury, but was the proximate cause as well.” Holmes v. Sec. Investor Protection Corp., — U.S. —, —, 112 S.Ct. 1311, 1317, 117 L.Ed.2d 532 (1992) (plaintiff must prove “a direct relation between the injury asserted and the injurious conduct alleged”); see also Sedima, 473 U.S. at 496, 105 S.Ct. at 3285; County of Suffolk, 907 F.2d at 1311; Hecht v. Commerce Cleanng House, Inc., 897 F.2d 21, 23 (2d Cir.1990) (“[b]y itself, factual causation {e.g., ‘cause-in-fact’ or ‘buffer’ causation) is not sufficient”); Ceribelli v. Elghanayan, 990 F.2d 62, 65 n. 3 (2d Cir. 1993) (citing Holmes v. Sec. Investor Protection Corp., — U.S. at— —, 112 S.Ct. at 1316-18; Manufacturers Hanover Trust Co. v. Drysdale Sec. Corp., 801 F.2d 13, 20-22 (2d Cir.1986), cert. denied, 479 U.S. 1066, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987)). In the Second Circuit, the RICO pattern or acts proximately cause a plaintiffs injury if they are a substantial factor in the sequence of responsible causation, and if the injury is reasonably foreseeable or anticipated as a natural consequence. Hecht v. Commerce Clearing House, Inc., 897 F.2d at 23-24. Plaintiffs allege in eonclusory language that they suffered and continue to suffer injury “as a result of’ defendants’ racketeering activity. (Compl. ¶¶ 78, 80, 85) However, plaintiffs do not allege any facts to" }, { "docid": "15446937", "title": "", "text": "there is no jurisdiction, there is ... no discretion to ignore that lack of jurisdiction.”) RICO’s civil private right of action is provided by § 1964(c) which confers standing to bring such an action on anyone who he has been injured in his or her business or property by conduct constituting a violation of § 1962 of the statute. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 495, 105 S.Ct. 3275, 3284, 87 L.Ed.2d 346 (1985). Plaintiffs here allege violation of §§ 1962(b), (c) and (d). Further, “the compensable injury necessarily is the harm caused by predicate acts sufficiently related to constitute a pattern.” Id. at 496, 105 S.Ct. at 3285. RICO standing may only be founded upon injury from § 1961 predicate acts, and not upon any and all overt acts furthering a RICO conspiracy. Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 25 (2d Cir.1990); In re Crazy Eddie Sec. Litig., 714 F.Supp. 1285, 1291-92 (E.D.N.Y.1989). In Burdick v. American Express Company, the Court of Appeals held that the RICO plaintiff in that case was burdened to show that he had been harmed by the § 1961 predicate acts alleged, and looked no further than the plaintiffs complaint to determine that he had not met this burden. 865 F.2d 527, 529 (2d Cir.1989). Further, the Court of Appeals has made it clear that the predicate acts of the alleged RICO violation must be the proximate cause of the plaintiffs injury, see, e.g., Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1345 (2d Cir.1994); Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23-24 (2d Cir.1990) (“standing may be founded only upon injury from overt acts that are also section 1961 predicate acts”); Miranda v. Ponce, 948 F.2d 41, 48 (1st Cir.1991) (“For judges, under a conspiracy rubric, to allow RICO damages for an injury caused other than by an enumerated predicate offense would be tantamount to rewriting the statute. Although the Court has stated that Congress intended RICO to be generously construed, see Sedima, 473 U.S. at 497, 105 S.Ct. at 3285, there are bounds to interpretive" }, { "docid": "8046033", "title": "", "text": "scheme, Haviland sets forth the alleged efforts to extort him into divulging confidential client information that occurred from July 1987 until his termination in February 1989. Haviland contends that these threats, combined with an allegedly inappropriate raise in 1987, a salary reduction in 1988, and his ultimate discharge in 1989, constituted attempted extortion in violation of the Hobbs Act. C. Standing Under Section 1964(c) and the Relevant Caselaw In urging this Court to dismiss the RICO causes of action, Aron does not focus on the sufficiency of the predicate acts themselves. Instead, Aron argues that Haviland’s claim is essentially one for “wrongful termination,” and that courts in this Circuit and elsewhere have consistently held that the injury flowing from a retaliatory firing is insufficient to confer standing under RICO. The right to maintain a private RICO action extends only to those “person[s] injured in [their] business or property by reason of a violation of section 1962 of this chapter____” 18 U.S.C. § 1964(c) (emphasis added). Although the meaning of the “by reason of” language is not altogether intuitive, the Supreme Court has made clear that a “ ‘defendant who violates section 1962 is not liable for treble damages to everyone he might have injured by other conduct.’ ” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985) (citation omitted). Instead, a “plaintiff only has standing [under 1964(c)] if, and may recover only to the extent that, he has been injured in his business or property by the conduct constituting the violation____” Id. Thus, in order to have standing to sue under RICO, the alleged injury must be caused by a pattern of racketeering activity violating section 1962 or by individual RICO predicate acts, and the RICO pattern or acts must proximately cause the alleged injury. Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23 (2d Cir.1990); see also Holmes v. Securities Investor Protection Corp., — U.S. -, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992) (right to sue under RICO requires a direct, proximate relation between the injury asserted and the injurious" }, { "docid": "16304203", "title": "", "text": "Investor Protection Corp., 503 U.S. 258, 279, 112 S.Ct. 1311, 1323-24, 117 L.Ed.2d 532 (1992). Thus, “the RICO pattern or [predicate] acts must proximately cause plaintiffs injury.” Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23 (2d Cir.1990). For the RICO pattern or acts to proximately cause a plaintiffs injury, they must be a “substantial factor in the sequence of responsible causation, and ... the injury [must be] reasonably foreseeable or anticipated as a natural consequence.” Id. at 23-24. See also Norman v. Niagara Mohawk Power Corp., 873 F.2d 634, 636 (2d Cir.1989) (“The phrase ‘by reason of requires that there be a causal connection between the prohibited conduct and plaintiffs injury”); Burdick v. American Express Co., 865 F.2d 527, 529 (2d Cir.1989) (per curiam) (“in order to establish standing, [plaintiff] must show that the damage to his business or property resulted from the alleged mail and securities fraud”). In evaluating the issue of proximate cause, the Second Circuit has held that a plaintiffs injuries are not proximately caused by a defendant’s alleged RICO violation, or predicate acts of mail or wire fraud, where the plaintiff was neither the direct target of the racketeering enterprise nor a competitor or customer of the racketeer. Sperber v. Boesky, 849 F.2d 60, 65 (2d Cir.1988). See also In re American Express Co. Shareholder Litigation, 39 F.3d 395, 400 (2d Cir.1994) (dismissing RICO claims by shareholders who were not the intended targets of the RICO violations); Hecht, 897 F.2d at 24 (dismissing RICO claims where plaintiff was neither the target of the racketeering enterprise nor a competitor or customer of the racketeer); Miller v. Helmsley, 745 F.Supp. 932, 938 (S.D.N.Y.1990) (“‘the Second Circuit [has] concluded that plaintiffs who are either targets of the racketeering enterprise, competitors, or customers of the racketeer are those plaintiffs who were probably intended by Congress to recover under RICO’ ”) (quoting Department of Economic Dev. v. Arthur Andersen & Co., 747 F.Supp. 922, 941 (S.D.N.Y.1990)). Applying this standard, courts in this circuit and others consistently have declined to accord standing under section 1962(c) to employees who were discharged" }, { "docid": "23091081", "title": "", "text": "reason of’ requires that there be a causal connection between the prohibited conduct and [the] plaintiffs injury.’ ” County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1311 (2d Cir.1990) (quoting Norman v. Niagara Mohawk Power Corp., 873 F.2d 634, 636 (2d Cir.1989)). To show that an injury resulted “by reason of’ the defendant’s action, a plaintiff must show “ ‘that the defendant’s violations were a proximate cause of the plaintiffs injury, i.e., that there was a direct relationship between the plaintiffs injury and the defendant’s injurious conduct.’” First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 769 (2d Cir.1994) (quoting Standardbred Owners Ass’n v. Roosevelt Raceway Assocs., L.P., 985 F.2d 102, 104 (2d Cir.1993)); see also Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 268, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992) (section 1964(c) requires plaintiff to establish proximate cause). This requires a showing “not only that the defendant’s alleged RICO violation was the ‘but-for’ or cause-in-fact of his injury, but also that the violation was the legal or proximate cause.” First Nationwide Bank, 27 F.3d at 769 (citing Holmes, 503 U.S. at 265-69, 112 S.Ct. 1311; Standardbred Owners, 985 F.2d at 104; Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23 (2d Cir.1990)). In other words, a plaintiffs injury must be both factually and proximately caused by a defendant’s violation of section 1962. See, e.g., In re American Express Co. Shareholder Litigation, 39 F.3d 395, 399 (2d Cir.1994) (plaintiffs injuries must be “both factually and proximately caused by the alleged RICO violation”); Hecht, 897 F.2d at 23 (“By itself, factual causation (e.g., ‘cause in fact’ or ‘but for’ causation) is not sufficient”); Sperber v. Boesky, 849 F.2d 60, 63 (2d Cir.1988) (RICO “liability should not extend as far as factual causation.”). Even assuming arguendo that a plaintiff may recover for injuries caused by the operation of a RICO enterprise, in addition to injuries caused by discrete unlawful predicate acts, we see no error in the District Court’s ruling that the plaintiffs failed to prove that the defendants’ conduct caused the losses they claimed" }, { "docid": "16304202", "title": "", "text": "because he has failed to allege that the racketeering activity of which he complains was a proximate cause of his injuries. According to defendants, plaintiffs RICO claims are nothing more than an attempt to collect treble damages for what is essentially a wrongful discharge claim, not recognized under New York law. The relevant statute, 18 U.S.C. § 1964(c), provides: Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee. (emphasis added) In Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985), the Supreme Court explained that a RICO plaintiff “only has standing [under section 1964(c) ] if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation.” Id. at 496, 105 S.Ct. at 3285. Accord Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 279, 112 S.Ct. 1311, 1323-24, 117 L.Ed.2d 532 (1992). Thus, “the RICO pattern or [predicate] acts must proximately cause plaintiffs injury.” Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23 (2d Cir.1990). For the RICO pattern or acts to proximately cause a plaintiffs injury, they must be a “substantial factor in the sequence of responsible causation, and ... the injury [must be] reasonably foreseeable or anticipated as a natural consequence.” Id. at 23-24. See also Norman v. Niagara Mohawk Power Corp., 873 F.2d 634, 636 (2d Cir.1989) (“The phrase ‘by reason of requires that there be a causal connection between the prohibited conduct and plaintiffs injury”); Burdick v. American Express Co., 865 F.2d 527, 529 (2d Cir.1989) (per curiam) (“in order to establish standing, [plaintiff] must show that the damage to his business or property resulted from the alleged mail and securities fraud”). In evaluating the issue of proximate cause, the Second Circuit has held that a plaintiffs injuries are not proximately caused by a defendant’s alleged RICO" }, { "docid": "22928344", "title": "", "text": "leave to replead. This appeal followed. DISCUSSION Appellants confine their appeal to the dismissal of their RICO claim. Appellees assert that the judgment of the district court should be affirmed for the reasons relied on by the district court, as well as on five other grounds. However, we need consider only appellees’ contention that the injury to American Express was not proximately caused by the alleged acts of the RICO defendants. RICO grants standing to sue to “[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter.” 18 U.S.C. § 1964(c) (1988) (emphasis added). This language limits standing to plaintiffs whose injuries were both factually and proximately caused by the alleged RICO violation. Holmes v. Securities Investor Protection Corp., — U.S. -, -, 112 S.Ct. 1311, 1316-18, 117 L.Ed.2d 532 (1992); see also Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23 (2d Cir.1990) (“By itself, factual causation (e.g., ‘cause-in-fact’ or ‘but for’ causation) is not sufficient.”), Sperber v. Boesky, 849 F.2d 60, 63 (2d Cir.1988) (RICO “liability should not extend as far as factual causation”). Holmes described the common law proximate cause requirement as often taking the shape of a “direct relation between the injury asserted and the injurious conduct alleged.” Holmes, — U.S. at -, 112 S.Ct. at 1318. The requirement of such a “direct relation” therefore generally precludes recovery by “a plaintiff who complain[s] of harm flowing merely from the misfortunes visited upon a third person by the defendant’s acts.” Id. Holmes essentially endorsed a definition of proximate cause that we had earlier adopted. See Hecht, 897 F.2d 21, 23-24; Burdick v. American Express Co., 865 F.2d 527, 529 (2d Cir.1989); Sperber, 849 F.2d at 64-65. In Sperber, plaintiffs were members of a class of investors who, before arbitrager Ivan Boesky pleaded guilty to insider trading, had purchased shares of stock in six public corporations in which Boesky also held interests. 849 F.2d at 62. Subsequent to Boesky’s guilty plea, the share prices of the six stocks dropped by between 7% and 32%. The plaintiffs claimed that" }, { "docid": "14996452", "title": "", "text": "clear that no relief could be granted under any set of facts that could be proved consistent with [plaintiffs] allegations.” McLaughlin, 962 F.2d at 190 (internal quotation marks omitted) (quoting H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989)). In applying this standard, a court must read all well pleaded allegations in the complaint in the light most favorable to the plaintiff. See id.; see also De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 69 (2d Cir.1996). B. Proximate Cause RICO grants standing to pursue a civil damages remedy to “[a]ny person injured in his business or property by reason of a violation of [18 U.S.C. § 1962].” 18 U.S.C. § 1964(c). In order to bring suit under § 1964(c), a plaintiff must plead (1) the defendant’s violation of § 1962, (2) an injury to the plaintiffs business or property, and (3) causation of the injury by the defendant’s violation. See First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 767 (2d Cir.1994). Commercial’s appeal turns in part on whether its complaint satisfies the causation requirement. RICO’s use of the clause “by reason of’ has been held to limit standing to those plaintiffs who allege that the asserted RICO violation was the legal, or proximate, cause of their injury, as well as a logical, or “but for,” cause. See Holmes, 503 U.S. at 268, 112 S.Ct. 1311; see also Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23 (2d Cir.1990) (“By itself, factual causation ... is not sufficient.”). The requirement that a defendant’s actions be the proximate cause of a plaintiffs harm represents a policy choice premised on recognition of the impracticality of asserting liability based on the almost infinite expanse of actions that are in some sense causally related to an injury. See Sperber v. Boesky, 849 F.2d 60, 63 (2d Cir.1988). In marking that boundary, the Supreme Court has emphasized that a plaintiff cannot complain of harm so remotely caused by a defendant’s actions that imposing legal liability would transgress our “ideas of what justice" } ]

[ { "docid": "23114697", "title": "", "text": "City of New York v. Saper, supra, 336 U.S. at page 330, 69 S.Ct. at page 555. . In re Industrial Machine & Supply Co., D.C.W.D.Pa.1953, 112 F.Supp. 261, In re Lykens Hosiery Mills, D.C.S.D.N.X. 1956, 141 F.Supp. 895, and In re Cameron, D.C.S.D.Cal.1958, 166 F.Supp. 400 have all held that no interest accrues beyond the filing of the petition upon liened tax claims, while In re Parchem, D.C. Minn.1958, 166 F.Supp. 724 has sustained the Government’s position as to interest (but not penalties) on liened tax claims. . It is a general maxim that a creditor’s share in the bankrupt estate is determined as of the date of the filing of the petition. As was said in Board of County Com’rs of Shawnee County, Kan. v. Hurley, 8 Cir., 1909, 169 F. 92, 94: “On that date [the filing of the petition] there vests in such creditor as a cestui que trust an equitable estate in such a part of the property of the bankrupt as the amount of his provable claim at that time bears to the entire amount of the provable claims against the estate.” In this view, allowing post-bankruptcy interest to the holder of securities where the securities themselves are producing income after the filing of the petition does not diminish this equitable estate of another creditor. . The Supremo Court does not appear to have recognized any such general exception. City of New York v. Saper, supra, 336 U.S. at page 330, note 7, 69 S.Ct. at page 555, where the Court where the Court mentions only two exceptions to the rule against post-bankruptcy interest. See In re Macomb Trailer Coach, 6 Cir., 1952, 200 F.2d 611, where the Court points out that there is some difference of opinion as to a third exception, but the Court there recognizes it in a mortgage situation. See also Judge Clark’s discussion in Sword Line v. Industrial Commissioner of State of N. Y., 2 Cir., 1954, 212 F.2d 865, 869. . In re McAusland, D.C.N.J.1916, 235 F. 173; San Antonio Loan & Trust Co. v. Booth, 5 Cir.," } ]

[ { "docid": "18605051", "title": "", "text": "tension between Alchar and the well established principles restated above. . We shall discuss the bankruptcy court’s holding as it applies to Equitable’s claimed interest on both the interest and principal portions of the unpaid installments, although the bankruptcy court explicitly discusses only the \"interest on interest.” See note 4, supra. . Ron Pair did not address the precise issue presented here, but held that oversecured creditors are entitled under § 506(b) to simple post-petition interest on claims secured by noncon-sensual tax liens. Ron Pair indicates, however, that the Supreme Court reads § 506(b) according to the plain meaning of its language, regardless of any contrary doctrines under pre-Code caselaw. See id. 109 S.Ct. at 1031 (“The plain meaning of legislation should be conclusive, except in the 'rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intention of its drafters.’ ”) (citation omitted; brackets in original). Ron Pair itself rejected a purported equitable “rule” under pre-Code caselaw under which some courts had disallowed post-petition interest on claims secured by nonconsensual tax liens. See generally id. at 1031-34. Thus, while not dispositive of this case, Ron Pair is strongly suggestive of the correct analytical approach. . The “reasonableness\" of charges under § 506(b) is determined by reference to the relevant state contract law. See Mack, 789 F.2d at 1084 (consulting Virginia law); LHD Realty, 726 F.2d at 333 n. 8 (consulting Indiana law). . The First Circuit, applying pre-Code bankruptcy law, has summarized the three circumstances where, [d]espite the general prohibition on the payment of postpetition interest ... [ijnterest may accrue: (1) where the bankrupt ultimately proves to be solvent; (2) where securities, held by the creditor produce income after the filing of the petition; and (3) where the amount of the secured creditor's security is sufficient to satisfy both the principal and interest due on the secured claim. In re Boston and Maine Corp., 719 F.2d 493, 496 (1st Cir.1983), cert. denied, 466 U.S. 938, 104 S.Ct. 1913, 80 L.Ed.2d 461 (1984). . The Subletts state on appeal that \"(as" }, { "docid": "7190266", "title": "", "text": "166 F.Supp. 400, 407 (S.D. Cal.1958) (quoting In re Burch, 89 F.Supp. 249, 254 (D.Kan.1948)), aff’d sub nom. United States v. Bass, 271 F.2d 129 (9th Cir. 1959). As one federal court has explained: The allowance of interest [on tax claims] to the date of payment, an accumulation caused solely because of delays necessitated by the successful efforts of the Trustee to protect and increase the estate, seems to me to be entirely inequitable, and to result in an unbalance of equities between the several creditors rather than a “balance of equities” which the Supreme Court says is the touchstone of each decision.. In re Union Fabrics, Inc., 73 F.Supp. 685, 688 (S.D.N.Y.1947), aff’d sub nom., Carter v. United States, 168 F.2d 272 (2d Cir.1948), aff’d sub nom., City of New York v. Saper, 336 U.S. 328, 69 S.Ct. 554, 93 L.Ed. 710 (1949). Cambridge points to only two cases in which postpetition interest has been granted to a governmental entity on its liened tax claims. In re Parchem, 166 F.Supp. 724, 730 (D.Minn.1958); In re Ross Nursing Home, 2 B.R. 496, 499-500 (Bkrtcy. E.D.N.Y.1980). We note that both cases were decided by inferior federal courts — a district court in Parchem, and a bankruptcy court in Ross Nursing Home. We feel that both cases were wrongly decided and choose to follow the better authority of the four circuit courts of appeals which have found the third exception inapplicable to liened tax claims. In light of Saper and the uniform rule in the Circuit Courts of Appeals, we think it appropriate to limit the granting of post-petition interest to those exceptional situations involving creditors deemed to have bargained for specific collateral to secure both the principal obligation and interest. Further, we perceive no need, on the facts of this case, to extend the third exception to cover Cambridge’s perfected tax liens. “Collection of the public revenue is a favored object, but we think today it is no more favored than that of protecting remaining creditors from the law’s delay to the extent of denying post-bankruptcy interest on tax claims, liened" }, { "docid": "18605052", "title": "", "text": "on claims secured by nonconsensual tax liens. See generally id. at 1031-34. Thus, while not dispositive of this case, Ron Pair is strongly suggestive of the correct analytical approach. . The “reasonableness\" of charges under § 506(b) is determined by reference to the relevant state contract law. See Mack, 789 F.2d at 1084 (consulting Virginia law); LHD Realty, 726 F.2d at 333 n. 8 (consulting Indiana law). . The First Circuit, applying pre-Code bankruptcy law, has summarized the three circumstances where, [d]espite the general prohibition on the payment of postpetition interest ... [ijnterest may accrue: (1) where the bankrupt ultimately proves to be solvent; (2) where securities, held by the creditor produce income after the filing of the petition; and (3) where the amount of the secured creditor's security is sufficient to satisfy both the principal and interest due on the secured claim. In re Boston and Maine Corp., 719 F.2d 493, 496 (1st Cir.1983), cert. denied, 466 U.S. 938, 104 S.Ct. 1913, 80 L.Ed.2d 461 (1984). . The Subletts state on appeal that \"(as in Van-stan [sic]) there were funds from which such payment [of Equitable’s claimed interest] could be made, albeit to the detriment of other creditors.” Initial Brief of Appellees at 19. In Van-ston, as we have noted, the creditor’s claim was oversecured. . Equitable’s oversecured status also explains the bankruptcy court’s undisputed award of simple post-petition interest on the principal debt owed to Equitable. . At oral argument the following colloquy occurred concerning the solvency issue: JUDGE TUTTLE: [I]f the actual value of the assets [of the Subletts’ bankruptcy estate] exceeded the total amount of the [the Subletts’] other debts, how would it be inequitable [to the other creditors] to enforce [Equitable’s claim]? MR. HEACOCK [COUNSEL FOR THE SUB-LETTS]: I’m saying, Your Honor, that ... if Vanston stands for nothing more than a pure balance sheet analysis [of solvency] — and nothing more — Your Honor’s position would be correct. As noted above in the text, it is clear that Van-ston’s equitable analysis, contrary to the position of the Subletts, would not apply to a solvent" }, { "docid": "23312806", "title": "", "text": "the alleged bankrupt proves solvent, Beecher v. Leavenworth State Bank, 9 Cir., 1951, 192 F.2d 10; Littleton v. Kincaid, 4 Cir., 1950, 179 F.2d 848, 27 A.L.R.2d 572, (2) the security held by the creditor as collateral produces income after filing of the petition, Beecher v. Leavenworth State Bank, supra, and (3) the security is sufficient to pay interest as well as the principal of the claim. In re Macomb Trailer Coach, 6 Cir., 1953, 200 F.2d 611, 613. Although at least one circuit entertains doubt with respect to recognition of the third exception, it has been accorded general acceptance and, until Congress or the Supreme Court declares otherwise, is the rule in this circuit. Palo Alto Mutual Savings and Loan Ass’n v. Williams, 9 Cir., 1957, 245 F.2d 77; Jefferson Standard Life Ins. Co. v. United States, 9 Cir., 1957, 247 F.2d 777; see cases collected in United States v. Harrington, 4 Cir., 1959, 269 F.2d 719, note 7. Relying on this exception, the Government urges that, as a secured creditor by virtue of its tax lien, it should be allowed post-bankruptcy interest just as any other secured creditor. However, we agree with a majority of the courts to which the question here has been presented that this contention should be rejected. United States v. Harrington, 4 Cir., 1959, 269 F.2d 719; In re Industrial Machine & Supply Co., D.C.W.D.Pa. 1953, 112 F.Supp. 261; In re Lykens Hosiery Mills, D.C.S.D.N.Y.1956, 141 F.Supp. 895; In re Young, D.C.W.D. Wis.1959, 171 F.Supp. 317; contra: In re Parchem, D.C.Minn.1958, 166 F.Supp. 724. The principal reason usually assigned for not including liened tax claims within the third exception allowing post-bankruptcy interest to secured creditors is that, as said in United States v. Harrington, supra: “ * * * when the creditor extended credit, he relied upon the particular security given as collateral to secure both the principal of the debt and interest until payment and, if the collateral is sufficient to pay him, the contract between the parties ought not be abrogated by bankruptcy. This rationale has no application to tax liens.” The" }, { "docid": "20919433", "title": "", "text": "cases decided under Chapter 11, which include In re San Joaquin Estates, 64 B.R. 534, 536 (9th Cir. BAP 1986) (relying on parallel between § 726(a)(5) and § 1129(a)(7)); In re Manville Forest Products Corp., 43 B.R. 293, 199 (Bankr.S.D.N.Y.1984) (relying on “equitable principles”); and In re Oahu Cabinets, Ltd., 12 B.R. 160, 163 (Bankr.D.Hawaii 1981) (relying on commentary of Collier on what is analyzed to be the comparable Chapter X of the Act). There are several cases decided under the Act which state that the instance “where the bankrupt ultimately proves solvent” is one of the exceptions against the principle that accrual of post-petition interest is prohibited, as is set forth in Vanston Bondholders Protective Comm. v. Green, 329 U.S. 156, 165, 67 S.Ct. 237, 241, 91 L.Ed. 162 (1946). See, e.g., In re Beverly Hills Bancorp, 752 F.2d 1334, 1339 (9th Cir.1984); In re Boston & Maine Corp., 719 F.2d 493, 496 (1st Cir.1983); In re Walsh Constr., Inc., 669 F.2d 1325, 1330 (9th Cir.1982); In re New York, N.H. & H. R.R., 4 B.R. 758, 798 (D.Conn.1980); and In re Carpenter, 363 F.Supp. 218, 222 (W.D.Tenn.1973). As the Beverly Hills court states “the award of post-petition interest is dependent upon the equities of the case.” 752 F.2d at 1339. The Debtor cites two (2) authorities which it alleges hold to the contrary, In re Forest Hills Assoc., 40 B.R. 410 (Bankr.S.D.N.Y.1984); and In re Carr, 32 B.R. 343 (Bankr.N.D.Ga.1983). In fact, neither of these cases are in point, as they relate to interest claims by secured creditors against insolvent debtors. The fact that Forest Hills was decided by the same bankruptcy judge who decided Manville Forest shortly thereafter is indicative of the lack of similarity of the issue in Forest Hills to that at issue here. While we agree with the result in Carr, see In re Small, 65 B.R. 686 (Bankr.E.D.Pa.1986), we do not feel that disallowance of interest on mortgage ar-rearages to secured mortgage holders, the issue in Carr and Small, has any bearing on the issue here. While we recognize that the Debt- or’s" }, { "docid": "12376370", "title": "", "text": "to become an oversecured creditor, he had an expectation of receiving interest were it necessary to sell the security. See Kerber Packing Co., 276 F.2d at 247; Bass, 271 F.2d at 132; United States v. Harrington, 269 F.2d 719, 724 (4th Cir.1959). It was equally well established by at least four courts of appeals that the third exception — allowing the payment of post-petition interest if the claim was oversecured — did not apply to liens which were nonconsensual in nature, such as tax liens, because the underlying reason for the exception did not apply. See Kerber Packing Co., 276 F.2d at 247; Mighell, 273 F.2d at 684; Bass, 271 F.2d at 131-32; Harrington, 269 F.2d at 721-24. Cf. Boston & Maine Corp., 719 F.2d at 497. In such cases the parties had not bargained concerning particular collateral, and the creditor therefore did not have an expectation of receiving interest. One noted distinction between tax liens and contractual liens is that tax liens often apply to all of the debtor’s property, whereas consensual liens are specific in nature and attach to only one asset. Kerber Packing Co., 276 F.2d at 247; Bass, 271 F.2d 131-32; Boston & Maine Corp., 719 F.2d at 497 n. 1. In light of the judicial interpretation under the Bankruptcy Act regarding the payment of postpetition interest, Debtor asserts that section 506(b) does nothing more than codify this third exception to the bar against paying postpetition interest. Several bankruptcy courts, and at least one district court and one commentator, have sided with Debtor in concluding that section 506(b) disallows postpetition interest on prepetition nonconsensual secured claims by virtue of the prior judicial interpretation of the Bankruptcy Act. See, e.g., In re Newbury Cafe, Inc., 72 B.R. 478 (Bankr.E.D.Mass.1987) (postpetition interest is not mandated under section 506(b)); In re Dan-Ver Enters., Inc., 67 B.R. 951 (W.D.Pa.1986) (language is ambiguous and legislative history supports conclusion that Congress intended to codify pre-Code law), aff’g 60 B.R. 568 (Bankr.W.D.Pa.1986); In re Granite Lumber Co., 63 B.R. 466 (Bankr.D.Mont.1986) (in dicta, court notes that section 506(b) codifies preexisting law allowing interest" }, { "docid": "12376368", "title": "", "text": "55 L.Ed. 244 (1911). This general rule applied to tax liens, City of New York v. Saper, 336 U.S. 328, 337-38, 69 S.Ct. 554, 559-60, 93 L.Ed. 710 (1949); United States v. Mighell, 273 F.2d 682 (10th Cir.1959), and had its foundation primarily in the equitable principle that the delays necessitated by bankruptcy proceedings should not place one creditor at an advantage or disadvantage in contrast to other creditors: In the context of interest-bearing debts, the equitable principle enunciated in Sexton and Saper rests at bottom on an awareness of the inequity that would result if, through the continuing accumulation of interest in the course of subsequent bankruptcy proceedings, obligations bearing relatively high rates of interest were permitted to absorb the assets of a bankrupt estate whose funds were already inadequate to pay the principal of the debts owed by the estate. Nicholas v. United States, 384 U.S. 678, 683-84, 86 S.Ct. 1674, 1679, 16 L.Ed.2d 853 (1966) (footnote omitted). Over time, the federal courts created exceptions to this general rule to allow for postpetition interest on prepetition secured claims under the following circumstances: (1) the debtor is proven to be solvent; (2) the property held by the creditor to secure the debt produces income during the course of the proceedings; or (3) the value of the collateral securing the debt is sufficient to pay both the claim and postpetition interest on the claim. See, e.g., In re Boston & Maine Corp., 719 F.2d 493, 496 (1st Cir.1983), cert. denied, 466 U.S. 938, 104 S.Ct. 1913, 80 L.Ed.2d 461 (1984); In re Kerber Packing Co., 276 F.2d 245, 246 (7th Cir.1960); United States v. Bass, 271 F.2d 129, 130 (9th Cir.1959); In re Macomb Trailer Coach, Inc., 200 F.2d 611, 613 (6th Cir.1952), cert. denied, 345 U.S. 958, 73 S.Ct. 940, 97 L.Ed. 1378 (1953). The third exception above was created pursuant to the theory that postpetition interest should be allowed where a security agreement had been voluntarily executed and the creditor had successfully bargained for specific, valuable collateral to secure the principal obligation. Accordingly, where the creditor had bargained" }, { "docid": "7190261", "title": "", "text": "669 F.2d 1325, 1330 (9th Cir.1982); In re Kerber Packing Co., 276 F.2d 245, 246-47 (7th Cir.1960); United States v. Bass, 271 F.2d 129, 130 (9th Cir. 1959); In re Macomb Trailer Coach, Inc., 200 F.2d 611, 613 (6th Cir.1952), cert. denied, 345 U.S. 958, 73 S.Ct. 940, 97 L.Ed. 1378 (1953); see also Debentureholders Protective Committee of Continental Investment Corp. v. Continental Investment Corp., 679 F.2d at 269 (discussing first exception); United States v. Kalishman, 346 F.2d 514, 517-18 (8th Cir.1965) (discussing first and second exceptions), cert. denied, 384 U.S. 1003, 86 S.Ct. 1913, 16 L.Ed.2d 1017 (1966); United States v. Harrington, 269 F.2d 719, 720 (4th Cir.1959) (same); Castanar v. Mora, 234 F.2d 710, 712 (1st Cir.1956) (discussing third exception); Kagan v. Industrial Washing Machine Corp., 182 F.2d 139, 146 (1st Cir.1950) (same); Oppenheimer v. Oldham, 178 F.2d 386, 388-89 (5th Cir. 1949) (same). These exceptions are not rigid doctrinal categories. Rather, they are flexible guidelines which have been developed by the courts in the exercise of their equitable powers in insolvency proceedings. The reorganization court must consider whether to grant postpetition interest, not as an abstract matter, but in light of the nature of each claim and the equities of the case before it. In re Penn Central Transportation Co., 358 F.Supp. at 170; In re Leeds Homes, Inc., 222 F.Supp. 20, 33 (E.D.Tenn. 1963), aff’d 332 F.2d 648 (6th Cir.), cert. denied, 379 U.S. 836, 85 S.Ct. 71, 13 L.Ed.2d 43 (1964); see also In re Magnus Harmonica Corp., 262 F.2d 515, 518 (3d Cir.1959). At all times the reorganization court must be guided by the basic equitable principle announced in Vanston: It is manifest that the touchstone of each decision on allowance of interest in bankruptcy, receivership and reorganization has been a balance of equities between creditor and creditor or between creditors and the debtor. Vanston Bondholders Protective Committee v. Green, 329 U.S. at 165, 67 S.Ct. at 241 (citation omitted). Cambridge contends that, having perfected its tax lien prior to the filing of the petition, it became a secured creditor in the amount of" }, { "docid": "14508049", "title": "", "text": "3A Collier, Bankruptcy If 63.16 [1] at 1855 et seq. (14 ed. 1972). . The courts have recognized certain exceptions to the general rule that interest does not accrue after the petition in bankruptcy is filed and have allowed “post-petition” interest where (1) the alleged bankrupt proves solvent; (2) the security held by the creditor as collateral produces income after the filing of the petition; and (3) the security is sufficient to pay interest as well as the principal of the claim. United States v. Bass, 271 F.2d 129, 130 (9 Cir. 1959). See also, Columbia Aircraft Co. v. United States, supra; In re Lykens Hosiery Mills, 141 F. Supp. 895, 897 (S.D.N.Y.1956) ; 3A Collier, supra, at 1860 et seq. However, none of the above-stated exceptions are here applicable. . See also, discussion at 366 F.2d 407-10 (and tlie authorities cited therein) ; Bird & Sons Sales Corp. v. Tobin, 78 F.2d 371, 373 (8 Cir. 1935); 3A Collier, supra, ¶ 65.06 at 2294-9,5; 6 Remington, Bankruptcy Law § 287Í1 at 484 et seq. (5 ed., Henderson 1952 and Slupp.1973, Hayes). . In this regard, this Court is in accord with the view expressed by the Court of Appeals for the Third Circuit in the Time Sales case, 491 F.2d at 845, namely: [w]hen we are confronted with an instrument that satisfactorily indicates that subordinated creditors were put on notice that superior creditors may be entitled to interest up to the date of actual distribution ... we may then be called upon to determine whether the language of section 63(a)(1) and the policies underpinning the Bankruptcy Act permit the payment of post-petition interest from the bankrupt’s estate where some of the creditors have agreed to subordinate their claims against the bankrupt to those of other creditors. . 491 F.2d at 842. . Id. at 844. . Id. . The Court finds that the language contained in the involved subordination agreement is not of such nature as would preelude an interpretation of “interest” as employed therein so as to mean such interest as is usually allowable in bankruptcy proceedings, that" }, { "docid": "11539618", "title": "", "text": "rule stopping interest at bankruptcy had then been followed for more than a century and a half. He said the rule was not a matter of legislative command or statutory construction but, rather, a fundamental principle of the English bankruptcy system which we copied. Sexton v. Dreyfus, 219 U.S. 339, 344, [31 S.Ct. 256, 55 L.Ed. 244]. Our present statute contains no provision expressly repudiating that principle or allowing an exception in favor of tax claims. Every logical implication from relevant provisions is to the contrary. * * ” The three exceptions to the rule that in bankruptcy and other insolvency proceedings interest upon claims stops with the initiating of the proceedings are as follows: (1) where the bankrupt ultimately proves to be solvent; (2) where securities, held by the creditor, themselves produce income after the filing of the petition; and (3) where the amount of the secured creditor’s security is sufficient to satisfy both principal and interest on the secured claim. In re Lykens Hosiery Mills, Inc., Debtor, D.C.S.D.N.Y. 1956, 141 F.Supp. 895; United States v. Bass, 9 Cir., 1959, 271 F.2d 129. The Government contends that having perfected its tax lien prior to the date of filing, it became a secured creditor in the amount of its liened claims and enjoys the same status as all other secured creditors, that the validity of its lien is recognized and protected by the Bankruptcy Act, and that as such secured creditor it comes within the provisions of the third exception to the rule that no interest shall be allowed subsequent to the filing in bankruptcy proceedings. In appraising the Government’s assertion that its liened tax claims bring it within the third exception, it is appropriate to note that those cases wherein the third exception has been applied are readily distinguishable from this case. The third exception to the rule that interest does not accrue subsequent to filing provides protection to the creditor in his security which on liquidation produces a sufficient amount to satisfy the encumbrance and interest thereon. In the case of a mortgage or deed of trust, an" }, { "docid": "10975451", "title": "", "text": "287 (Bankr.C.D.Cal.1988); see also, In re San Joaquin Estates, Inc., 64 B.R. 534 (9th Cir.1986); In re Manville Forest Products Corp., 43 B.R. 293 (Bankr.S.D.N.Y.1984), aff'd in part, 60 B.R. 403 (S.D.N.Y.1986); In re Boston and Maine Corp., 719 F.2d 493 (1st Cir.1983), cert. denied, 466 U.S. 938, 104 S.Ct. 1913, 80 L.Ed.2d 461 (1984); Debentureholders Protective Comm, of Continental Investment Corp. v. Continental Investment Corp., 679 F.2d 264 (1st Cir.), cert. denied, 459 U.S. 894, 103 S.Ct. 192, 74 L.Ed.2d 155 (1982). By most measures, Sunbeam has been solvent. In 1984, a similar fact situation occurred in the Johns-Manville Corporation case. Creditors of Manville Forest Products Corporation requested post-petition interest from the solvent subsidiary. The court found as follows: [W]here the debtor’s estate is sufficient to pay the interest which accrues after the filing date, ‘it would seem inappropriate to return to the debtor a surplus of his assets after accommodation of all claims without a distribution to the creditors of accrued interest to the date of payment of the claims by the trustee.’ Therefore, where the debtor is solvent, the bankruptcy rule is that post-petition interest which accrues on unsecured claims which are allowable against the debtor’s estate will be paid in full before any money is allowed to revert back to the debtor or its shareholders. In re Manville Forest Products Corp., 43 B.R. 293, 300 (Bankr.S.D.N.Y.1984), aff'd in part, 60 B.R. 403 (S.D.N.Y.1986) quoting 3 Collier on Bankruptcy, 11 502.02 at 503-33 (15th ed. 1984). The court then stated that the solvent subsidiary was obligated to pay post-petition interest to lenders on both its secured and unsecured obligations. Id. at 300. The court is convinced that Prudential and the other members of Class 5.SB.7 would succeed on the issue of interest if it were to be tried. The settlement merely gives Class 5.SB.7 interest without the enormous cost of additional litigation. The Equity Committee contends that even if class 5.SB.7 is entitled to post-petition interest, they would only be entitled to the Pennsylvania statutory rate of 6%. We are not convinced of this contention. “[W]ith respect" }, { "docid": "22750242", "title": "", "text": "States v. Harrington, 269 F. 2d 719, 722 (CA4 1959), and there was some uncertainty among courts which did recognize it as to whether this Court ever had done so. United States v. Bass, 271 F. 2d 129, 131, n. 3 (CA9 1959); but see Vanston Bondholders Protective Committee v. Green, 329 U. S. 156, 159 (1946). What is at issue in this case is not the oversecured claim exception per se, but an exception to that exception. Several Courts of Appeals refused to apply the oversecured claim exception to an oversecured federal tax claim. See United States v. Harrington, 269 F. 2d, at 722-723 (holding that even if there were a general exception for oversecured claims, it would not apply to tax liens); United States v. Bass, 271 F. 2d, at 132; In re Kerber Packing Co., 276 F. 2d 245, 247-248 (CA7 1960); see also In re Boston & Maine Corp., 719 F. 2d 493, 496 (CA1 1983) (municipal property tax claim), cert, denied sub nom. City of Cambridge v. Meserve, 466 U. S. 938 (1984). But see In re Parchem, 166 F. Supp. 724, 730 (Minn.) (allowing postpetition interest on tax claim), appeal dism’d upon stipulation, 261 F. 2d 839 (CA8 1958); In re Ross Nursing Home, 2 B. R. 496, 499-500 (Bkrtcy., EDNY 1980) (same). It is this refusal to apply the exception that the Court of Appeals thought constituted a well-established judicially created rule. The fact that this Court never clearly has acknowledged or relied upon this limitation on the oversecured-claim exception counsels against concluding that the limitation was well recognized. Also arguing against considering this limitation a clear rule is the fact that all the cases that limited the third exception were tax-lien cases. Each gave weight to City of New York v. Saper, supra, where this Court had ruled that postpetition interest was not available on unsecured tax claims, and reasoned that the broad language of that case denied it for all tax claims. See United States v. Harrington, 269 F. 2d, at 721-722; United States v. Bass, 271 F. 2d, at 132;" }, { "docid": "23312807", "title": "", "text": "its tax lien, it should be allowed post-bankruptcy interest just as any other secured creditor. However, we agree with a majority of the courts to which the question here has been presented that this contention should be rejected. United States v. Harrington, 4 Cir., 1959, 269 F.2d 719; In re Industrial Machine & Supply Co., D.C.W.D.Pa. 1953, 112 F.Supp. 261; In re Lykens Hosiery Mills, D.C.S.D.N.Y.1956, 141 F.Supp. 895; In re Young, D.C.W.D. Wis.1959, 171 F.Supp. 317; contra: In re Parchem, D.C.Minn.1958, 166 F.Supp. 724. The principal reason usually assigned for not including liened tax claims within the third exception allowing post-bankruptcy interest to secured creditors is that, as said in United States v. Harrington, supra: “ * * * when the creditor extended credit, he relied upon the particular security given as collateral to secure both the principal of the debt and interest until payment and, if the collateral is sufficient to pay him, the contract between the parties ought not be abrogated by bankruptcy. This rationale has no application to tax liens.” The Government submits that the asserted distinction between contractual and statutory liens is without merit and does not support disallowance of post-bankruptcy interest on a liened tax claim. First it is argued that a tax lien is on a par with other secured claims and has a status equal to that of contractual liens. United States v. City of New Britain, 1954, 347 U.S. 81, 74 S.Ct. 367, 98 L.Ed. 520; Goggin v. California Labor Division, 1948, 336 U.S. 118, 69 S.Ct. 469, 93 L.Ed. 543; Glass City Bank of Jeanette, Pa. v. United States, 1945, 326 U.S. 265, 66 S.Ct. 108, 90 L.Ed. 56. As a corollary thereto it is asserted there is no warrant for distinguishing between statutory and contractual liens on the ground the former are “general” or “floating” liens on all property, whereas contractual liens are “specific” as attaching to designated property, for the reason that a tax lien has been held to be both general and specific. United States v. City of New Britain, 1954, 347 U.S. 81, 74 S.Ct. 367," }, { "docid": "19180995", "title": "", "text": "rights, giving consideration and identifying specific collateral from which the additional payments should be made, and that courts should protect their expectations. See, e.g., United States v. Harrington, 269 F.2d 719, 724 (4th Cir.1959). But this was an exception. Unsecured creditors continued to have no such entitlement, and even creditors with overse-cured liens arising not by agreement (such as tax and judgment liens) were not generally allowed postpetition additions because they had not bargained for them and any postpeti tion sums they could collect would come at the cost of the unsecured creditors. See In re Boston & Maine Corp., 719 F.2d 493, 497 (1st Cir.1983), cert. denied, 466 U.S. 938, 104 S.Ct. 1913, 80 L.Ed.2d 461 (1984). Postpetition interest on nonconsensual claims was seen as an “unbargained-for windfall at the expense of the general unsecured creditors of the debtor.” Charles Jordan Tabb and Robert M. Lawless, “Of Commas, Gerunds, and Conjunctions: The Bankruptcy Jurisprudence of the Rehnquist Court,” 42 Syracuse L.Rev. 823, 845 (1991); see also Jeffrey H. Paravano, “Postpetition Interest on Overse-cured Tax Liens — Abandonment of the ‘Non-consensual’ Distinction in Bankruptcy Proceedings: United States v. Ron Pair Enters.,” 43 Tax Law. 475 (1990). The Courts of Appeals which addressed this issue prior to the enactment of the 1978 Code all followed this rule. See In re Kerber Packing Co., 276 F.2d 245, 246-48 (7th Cir.1960); Harrington, 269 F.2d at 721-24; United States v. Bass, 271 F.2d 129, 130-32 (9th Cir.1959); United States v. Mighell, 273 F.2d 682, 684 (10th Cir.1959); see also Boston and Maine, 719 F.2d at 496-98; for a possible counterexample, see Berryhill v. Gerstel, 196 F.2d 304 (5th Cir.1952). As late as 1988 Collier’s endorsed what it characterized as mainstream pre-1978 Code practice to deny postpetition interest on nonconsensual oversecured claims. 3 Collier on Bankruptcy ¶ 506.05 and n. 5b (15th ed.1988). Early decisions under the 1978 Code were mixed, with some awarding postpetition interest on nonconsensual liens, see Best Repair Co. v. United States, 789 F.2d 1080, 1082 (4th Cir.1986), and others following the traditional rule, see United States v. Ron Pair Enters.," }, { "docid": "3830133", "title": "", "text": "Debtors with a “fresh start.” On that issue the Court stated “an allowance of post-petition interest on an oversecured claim does not have a “chilling effect” on the Debtor and provides a distribution to the creditor of the full and proper amount of its claim.” In re Morrissey, supra at 573. This Court agrees with the decision and the rationale of Morrissey. The parties in In re Loveridge Mach. & Tool Co., Inc., 36 B.R. 159 (Bankr.D.Utah 1983) as in the present matter advanced explanations of the grammatical structure of § 506(b) in an effort to bolster their different interpretations of it. The Court in Loveridge, supra at 162, rejected those theories as unnecessary and explained “§ 506(b) treats interest on ‘an allowed secured claim.’ An allowed secured claim may arise not only from a contract, but also from a non-contractual obligation which has become a lien on property .... If there is no agreement, then fees, costs, and charges are not allowable. But whether or not the claim arises from a contract or not interest is to be added to allowed oversecured claims.” Loveridge, supra at 573. Also see In re Bormes, 14 B.R. 895 (Bankr.D.S.D.1981). Further support for the position that § 506(b) provides for interest on any oversecured claim can be found in In re Hoffman, 28 B.R. 503 (Bankr. 12 MA.1983) where the Court held the I.R.S. was entitled to interest under § 506(b) (citing In re Busman, 5 B.R. 332 (Bankr.E.D.N.Y.1980). This Court has not ignored the cases which reached a contrary result. See In re Boston and Maine Corp., 719 F.2d 493 (1st Cir.1983). Cert. denied sub nom, Cambridge v. Meserve, 466 U.S. 938, 104 S.Ct. 1913, 80 L.Ed.2d 461 (1984); United States v. Harrington, 269 F.2d 719 (4th Cir.1959); In re Venable, 48 B.R. 853 (D.C.S.D.N.Y.1985); In re Best Repair Company, Inc., supra; In re Trent, supra. However, those cases either were called upon to interpret pre-code law or based their interpretation of § 506(b) on those pre code cases. The Court finds that those cases which denied interest on a non consensual" }, { "docid": "19180996", "title": "", "text": "Liens — Abandonment of the ‘Non-consensual’ Distinction in Bankruptcy Proceedings: United States v. Ron Pair Enters.,” 43 Tax Law. 475 (1990). The Courts of Appeals which addressed this issue prior to the enactment of the 1978 Code all followed this rule. See In re Kerber Packing Co., 276 F.2d 245, 246-48 (7th Cir.1960); Harrington, 269 F.2d at 721-24; United States v. Bass, 271 F.2d 129, 130-32 (9th Cir.1959); United States v. Mighell, 273 F.2d 682, 684 (10th Cir.1959); see also Boston and Maine, 719 F.2d at 496-98; for a possible counterexample, see Berryhill v. Gerstel, 196 F.2d 304 (5th Cir.1952). As late as 1988 Collier’s endorsed what it characterized as mainstream pre-1978 Code practice to deny postpetition interest on nonconsensual oversecured claims. 3 Collier on Bankruptcy ¶ 506.05 and n. 5b (15th ed.1988). Early decisions under the 1978 Code were mixed, with some awarding postpetition interest on nonconsensual liens, see Best Repair Co. v. United States, 789 F.2d 1080, 1082 (4th Cir.1986), and others following the traditional rule, see United States v. Ron Pair Enters., 828 F.2d 367, 370-73 (6th Cir.1987), rev’d, 489 U.S. 235, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989); In re Newbury Cafe, 841 F.2d 20, 22 (1st Cir.1988), vacated, 489 U.S. 1049, 109 S.Ct. 1305, 103 L.Ed.2d 575 (1989); Boston & Maine, 719 F.2d at 495-98. However, it is notable that courts on both sides of this question typically began their analysis with the traditional rule and then found that Congress in enacting § 506(b) either codified by implication the traditional denial of post-petition additions to nonconsensual claims or modified that rule to the extent of allowing postpetition interest only. The Supreme Court has recently settled this difference of opinion among the circuits. In United States v. Ron Pair Enters., 489 U.S. 235, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989), the government sought interest on its tax claim. The Court found that § 506(b) provides for postpetition interest on overse-cured claims whether they arise by operation of law or under an agreement, but allows postpetition fees and costs only to consensual oversecured lienholders whose claims arise" }, { "docid": "7190260", "title": "", "text": "10, 10-11 (1st Cir.1951), cert. denied, 342 U.S. 918, 72 S.Ct. 364, 96 L.Ed. 686 (1952); United States v. General Engineering and Manufacturing Co., 188 F.2d 80, 81-83 (8th Cir. 1951), aff’d per curiam, 342 U.S. 912, 72 S.Ct. 358, 96 L.Ed. 682 (1952); direct actions against a debtor after the confirmation of an arrangement, National Foundry Co. v. Director of Internal Revenue, 229 F.2d 149, 150-51 (2d Cir.1956); and Section 77 railroad reorganizations, In re Penn Central Transportation Co., 358 F.Supp. 154, 170 (E.D.Pa.1973); In re New York, New Haven and Hartford Railroad Co., 304 F.Supp. 1121, 1129-32 (D.Conn.1969). Despite the general prohibition on the payment of postpetition interest, three exceptions have been developed by the federal courts. Interest may accrue: (1) where the bankrupt ultimately proves to be solvent; (2) where securities, held by the creditor produce income after the filing of the petition; and (3) where the amount of the secured creditor’s security is sufficient to satisfy both the principal and interest due on the secured claim. In re Walsh Construction, Inc., 669 F.2d 1325, 1330 (9th Cir.1982); In re Kerber Packing Co., 276 F.2d 245, 246-47 (7th Cir.1960); United States v. Bass, 271 F.2d 129, 130 (9th Cir. 1959); In re Macomb Trailer Coach, Inc., 200 F.2d 611, 613 (6th Cir.1952), cert. denied, 345 U.S. 958, 73 S.Ct. 940, 97 L.Ed. 1378 (1953); see also Debentureholders Protective Committee of Continental Investment Corp. v. Continental Investment Corp., 679 F.2d at 269 (discussing first exception); United States v. Kalishman, 346 F.2d 514, 517-18 (8th Cir.1965) (discussing first and second exceptions), cert. denied, 384 U.S. 1003, 86 S.Ct. 1913, 16 L.Ed.2d 1017 (1966); United States v. Harrington, 269 F.2d 719, 720 (4th Cir.1959) (same); Castanar v. Mora, 234 F.2d 710, 712 (1st Cir.1956) (discussing third exception); Kagan v. Industrial Washing Machine Corp., 182 F.2d 139, 146 (1st Cir.1950) (same); Oppenheimer v. Oldham, 178 F.2d 386, 388-89 (5th Cir. 1949) (same). These exceptions are not rigid doctrinal categories. Rather, they are flexible guidelines which have been developed by the courts in the exercise of their equitable powers in insolvency proceedings." }, { "docid": "14508048", "title": "", "text": "Senior Creditors’ claims to post-petition interest or subordinating them to [Appellant’s] claim to principal and interest through the date of bankruptcy, January 13, 1969. . Judge Ryan’s opinion at 6. . Id. at 9. . Id. . Section 63(a)(1) of the Bankruptcy Act, 11 U.S.C. § 103(a)(1) provides, in relevant part: (a) Debts of the bankrupt may be proved and allowed against his estate which are founded upon (1) a fixed liability, as evidenced by a judgment or an instrument in writing, absolutely owing at the time of the filing of the petition by or against him, whether then payable or not, with any interest thereon which would have been recoverable at that date. . . See, e.g., Nicholas v. United States, 384 U. S. 678, 86 S.Ct. 1674, 16 L.Ed.2d 853 (1966); Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 67 S.Ct. 237, 91 L.Ed. 162 (1947) ; Sexton v. Dreyfus, 219 U.S. 339, 31 S.Ct. 256, 55 L.Ed. 244 (1911) ; Columbia Aircraft Co. v. United States, 163 F.Supp. 932 (S.D.N.Y.1958) ; 3A Collier, Bankruptcy If 63.16 [1] at 1855 et seq. (14 ed. 1972). . The courts have recognized certain exceptions to the general rule that interest does not accrue after the petition in bankruptcy is filed and have allowed “post-petition” interest where (1) the alleged bankrupt proves solvent; (2) the security held by the creditor as collateral produces income after the filing of the petition; and (3) the security is sufficient to pay interest as well as the principal of the claim. United States v. Bass, 271 F.2d 129, 130 (9 Cir. 1959). See also, Columbia Aircraft Co. v. United States, supra; In re Lykens Hosiery Mills, 141 F. Supp. 895, 897 (S.D.N.Y.1956) ; 3A Collier, supra, at 1860 et seq. However, none of the above-stated exceptions are here applicable. . See also, discussion at 366 F.2d 407-10 (and tlie authorities cited therein) ; Bird & Sons Sales Corp. v. Tobin, 78 F.2d 371, 373 (8 Cir. 1935); 3A Collier, supra, ¶ 65.06 at 2294-9,5; 6 Remington, Bankruptcy Law § 287Í1 at 484 et seq." }, { "docid": "12376369", "title": "", "text": "interest on prepetition secured claims under the following circumstances: (1) the debtor is proven to be solvent; (2) the property held by the creditor to secure the debt produces income during the course of the proceedings; or (3) the value of the collateral securing the debt is sufficient to pay both the claim and postpetition interest on the claim. See, e.g., In re Boston & Maine Corp., 719 F.2d 493, 496 (1st Cir.1983), cert. denied, 466 U.S. 938, 104 S.Ct. 1913, 80 L.Ed.2d 461 (1984); In re Kerber Packing Co., 276 F.2d 245, 246 (7th Cir.1960); United States v. Bass, 271 F.2d 129, 130 (9th Cir.1959); In re Macomb Trailer Coach, Inc., 200 F.2d 611, 613 (6th Cir.1952), cert. denied, 345 U.S. 958, 73 S.Ct. 940, 97 L.Ed. 1378 (1953). The third exception above was created pursuant to the theory that postpetition interest should be allowed where a security agreement had been voluntarily executed and the creditor had successfully bargained for specific, valuable collateral to secure the principal obligation. Accordingly, where the creditor had bargained to become an oversecured creditor, he had an expectation of receiving interest were it necessary to sell the security. See Kerber Packing Co., 276 F.2d at 247; Bass, 271 F.2d at 132; United States v. Harrington, 269 F.2d 719, 724 (4th Cir.1959). It was equally well established by at least four courts of appeals that the third exception — allowing the payment of post-petition interest if the claim was oversecured — did not apply to liens which were nonconsensual in nature, such as tax liens, because the underlying reason for the exception did not apply. See Kerber Packing Co., 276 F.2d at 247; Mighell, 273 F.2d at 684; Bass, 271 F.2d at 131-32; Harrington, 269 F.2d at 721-24. Cf. Boston & Maine Corp., 719 F.2d at 497. In such cases the parties had not bargained concerning particular collateral, and the creditor therefore did not have an expectation of receiving interest. One noted distinction between tax liens and contractual liens is that tax liens often apply to all of the debtor’s property, whereas consensual liens are" }, { "docid": "10975450", "title": "", "text": "In order to determine the reasonableness of this settlement, this court must again look to the factors set forth in In re Texaco, Inc. Those factors will not be repeated here. The most important factor is the likelihood of success should the issue of interest be decided at trial. Prudential (the majority claimholder in Class 5.SB.7) has filed a complaint to determine the extent of the interest owed to them under the loan agreement. The Equity Committee contends that the members of Class 5.SB.7 are not entitled to any interest because these claimants are not secured. As a general rule, accrual of interest on a debt is suspended upon the filing of a petition in bankruptcy. Nicholas v. United States, 384 U.S. 678, 86 S.Ct. 1674, 16 L.Ed.2d 853 (1966). In general, insolvent debtors are not required to pay post-petition interest to unsecured creditors. However, numerous courts have found that where the debtor proves to be solvent, post-petition interest which accrues on unsecured claims may be allowed. In re A & L Properties, 96 B.R. 287 (Bankr.C.D.Cal.1988); see also, In re San Joaquin Estates, Inc., 64 B.R. 534 (9th Cir.1986); In re Manville Forest Products Corp., 43 B.R. 293 (Bankr.S.D.N.Y.1984), aff'd in part, 60 B.R. 403 (S.D.N.Y.1986); In re Boston and Maine Corp., 719 F.2d 493 (1st Cir.1983), cert. denied, 466 U.S. 938, 104 S.Ct. 1913, 80 L.Ed.2d 461 (1984); Debentureholders Protective Comm, of Continental Investment Corp. v. Continental Investment Corp., 679 F.2d 264 (1st Cir.), cert. denied, 459 U.S. 894, 103 S.Ct. 192, 74 L.Ed.2d 155 (1982). By most measures, Sunbeam has been solvent. In 1984, a similar fact situation occurred in the Johns-Manville Corporation case. Creditors of Manville Forest Products Corporation requested post-petition interest from the solvent subsidiary. The court found as follows: [W]here the debtor’s estate is sufficient to pay the interest which accrues after the filing date, ‘it would seem inappropriate to return to the debtor a surplus of his assets after accommodation of all claims without a distribution to the creditors of accrued interest to the date of payment of the claims by the trustee.’" } ]

[ { "docid": "22395854", "title": "", "text": "for torts committed in their corporate roles and the principles governing the amenability of such agents to personal jurisdiction solely on the basis of those acts. See, e. g., Lehigh Valley Industries v. Birenbaum, 527 F.2d 87, 92-93 (2d Cir. 1975) (dictum); United States v. Montreal Trust Co., supra; Bulova Watch Co. v. K. Hattori & Co., 508 F.Supp. 1322, 1347 (E.D.N.Y.1981); Grove Press, Inc. v. CIA, 483 F.Supp. 132, 135 (S.D.N.Y.1980), rev’d on other grounds, sub nom. Grove Press, Inc. v. Angleton, 649 F.2d 121 (2d Cir. 1981); Yardis Corp. v. Cirami, 76 Misc.2d 793, 351 N.Y.S.2d 586 (1974). See also Wilshire Oil Co. v. Riffe, 409 F.2d 1277 (10th Cir. 1969). These cases have recognized that if an individual has contact with a particular state only by virtue of his acts as a fiduciary of the corporation, he may be shielded from the exercise, by that state, of jurisdiction over him personally on the basis of that conduct. Thus, his conduct, although it may subject him to personal liability, may not form the predicate for the exercise of jurisdiction over him as an individual. The underpinning of this fiduciary shield doctrine is the notion that it is unfair to force an individual to defend a suit brought against him personally in a forum with which his only relevant contacts are acts performed not for his own benefit but for the benefit of his employer. Although the district court in Merkel Associates, Inc. v. Bellofram Corp., 437 F.Supp. 612, 619 (W.D.N.Y.1977), has opined that the fiduciary shield should never be made available where the actions of the corporate agent are tortious, this stance, except as tempered by the principles discussed below, is not the prevailing view. In any event, given the rationale for the fiduciary shield doctrine, we think it obvious that the doctrine should be applied where the tort al leged is negligent misrepresentation and the statements attributed to the corporate agent consisted of no more than confirmations and reiterations of the corporation’s own statements. As an equitable principle, the fiduciary shield doctrine is not applied mechanically; the" } ]

[ { "docid": "5957095", "title": "", "text": "Ex. 22, McRory Dep. 166. . See id. Ex. 24. . Berry Aff. Ex. 20. . 4A Charles Alan Wright & Arthur R. Miller, Federal Practice And Procedure: Civil 3D § 1069.7 (2002) (emphasis added) [hereinafter Wright & Miller 3D]; see Anglo Am. Ins. Group, P.L.C. v. CalFed Inc., 916 F.Supp. 1324, 1332 n. 17 (S.D.N.Y.1996). . See Pieczenik, 2000 WL 959753, at *4 (citing Beacon Enter., Inc. v. Menzies, 715 F.2d 757, 764 (2d Cir.1983), in turn citing McGowan v. Smith, 52 N.Y.2d 268, 272, 437 N.Y.S.2d 643, 419 N.E.2d 321. 52 N.Y.2d 268, 437 N.Y.S.2d 643, 645, 419 N.E.2d 321 (1981)). . See PL Mem. 44-45 (indicating that the acts of Brickellbush, Satinwood, Sphinx Rock, and Faily in connection with the Timberland & Tiburón Transaction would give the Court long-arm jurisdiction “on the First and Second pendent state law claims”). . Am. Cpt. ¶ 167. . Id. ¶ 173 (“At the January 16, 1997 meeting, Sohrab, Ahmed, Afsar and Schlegelmilch agreed to assist Sohrab's efforts in concealing from plaintiffs the fact that Sohrab was entitled to a significant inheritance from Soley-man and to conceal his interest in the Va-habzadeh family assets overseas.”) . Am. Cpt. ¶ 22(g). . See, e.g., Jazini, 148 F.3d at 184, 185; Barrett, 646 F.Supp. at 1350. . Simon, 86 F.Supp.2d at 120 (quoting Chrysler Capital Corp., 778 F.Supp. at 1268- 69, in turn quoting Dixon, 507 F.Supp. at 350); see also Grove Press, 649 F.2d at 122; Kreutter, 71 N.Y.2d at 467, 527 N.Y.S.2d at 199, 522 N.E.2d 40. . PL Mem. 42. . Id. . See, e.g., Grove Press, 649 F.2d at 122 (required showing is that alleged agent “acted in New York ... under some control by ... the nonresident principal” (emphasis added)). . N.Y. C.P.L.R. § 302(a), subd. (3)(i)-(ii) (McKinney 2001). . See supra text accompanying notes 58-59, 133-36. . PI. Mem. 45-46. . E.g., IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1056 (2d Cir.1993) (holding that, when court has personal jurisdiction over defendant on federal claim by virtue of statute authorizing nationwide service of process, it may" }, { "docid": "17389332", "title": "", "text": "the alleged Marine and Turbine Frauds. The Court denies the motion to the extent that it seeks to preclude all claims of foreign purchasers abroad. IV. PERSONAL JURISDICTION A. STATEMENT OF LAW Defendants Purves and Tchuruk contest the Court’s exercise of personal jurisdiction over them. Plaintiffs bear the burden of showing that the Court has such personal jurisdiction. See Robinson, 21 F.3d at 507. “Prior to discovery, a plaintiff challenged by a jurisdiction testing motion may defeat the motion by pleading in good faith, see Fed.R.Civ.P. 11, legally sufficient allegations of jurisdiction.” Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.1990); see also Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir.1996). Even where, as here, the defendant has challenged the plaintiffs’ factual allegations of jurisdiction, “the court may provisionally accept disputed factual allegations as true. In making such a ruling, the court need only determine whether the facts alleged by the plaintiff, if true, are sufficient to establish jurisdiction; no evidentiary hearing or factual determination is necessary for that purpose.” Credit Lyonnais Secs. (USA), Inc. v. Alcantara, 188 F.3d 151, 153 (2d Cir.1999). The Securities and Exchange Acts allow for personal jurisdiction over foreigners not present in the United States to the extent that the Due Process Clause of the Fifth Amendment permits. See Bersch, 519 F.2d at 998; Leasco Data Processing Equipment Corp. v. Maxwell, 468 F.2d 1326, 1340 (2d Cir.1972). “Where, as here, jurisdiction is based on a statute that provides for nationwide service of process, two components must be established to satisfy the jurisdictional requirements of the Due Process Clause: (1) the defendant must have ‘minimum contacts’ with the United States as a whole, and (2) the exercise of jurisdiction over the defendant must be ‘reasonable.’ ” In re Daimlerchrysler AG Sec. Litig., 247 F.Supp.2d 579, 582 (D.Del.2003) (citing SEC v. Euro Sec. Fund, No. 98 Civ. 7347, 1999 WL 76801, at *2 (S.D.N.Y. Feb.17, 1999)). As to the first inquiry, the court considers “(1) whether the defendant has purposefully directed his activities toward the forum, and (2) whether the" }, { "docid": "2728883", "title": "", "text": "530, 536 (2d Cir.1999) (McLaughlin, J.) (discussing fraud as an intentional tort); Simcuski v. Saeli 44 N.Y.2d 442, 451, 377 N.E.2d 713, 717, 406 N.Y.S.2d 259, 264 (1978) (same). These activities are substantially related to the claims asserted, because they were in furtherance of the alleged conspiracy to manipulate the copper market. In addition, the Comex trading activities occurred in New York while Levett and Vincent were physically in New York. Thus, this Court may exercise personal jurisdiction over Levett and Vincent pursuant to C.P.L.R. 302(a)(2). Alternatively, this Court may exercise personal jurisdiction over Levett or Vincent or both of them pursuant to this section if one of their alleged co-eonspirators committed a tort in New York. “It is well established that acts committed in New York by the co-conspirator of an out-of-state defendant pursuant to a conspiracy may subject the out-of-state defendant to jurisdiction under C.P.L.R. 302(a)(2).” Chrysler Capital Corp. v. Century Power Corp., 778 F.Supp. 1260, 1266 (S.D.N.Y. 1991) (Patterson, J.). See also Grove Press, Inc. v. Angleton, 649 F.2d 121, 123 (2d Cir.1981) (Van Graafeiland, J.); Laborers Local 17 Health and Benefit Fund v. Philip Morris, Inc., 26 F.Supp.2d 593, 601 (S.D.N.Y.1998) (Scheindlin, J.). To establish jurisdiction on this basis, Plaintiffs must (1) make a prima facie factual showing of a conspiracy, and (2) allege specific facts warranting the inference that Defendants Levett or Vincent or both of them were members of the conspiracy. Laborers Local 17 Health and Benefit Fund, 26 F.Supp.2d at 601; Chrysler Capital Corp., 778 F.Supp. at 1266. Plaintiffs “must also show that the defendant’s co-conspirator committed a tortious act in New York.” Id. To make a prima facie factual showing of a conspiracy, “a plaintiff must allege the primary tort and four elements: (a) a corrupt agreement between two or more persons, (b) an overt act in furtherance of the agreement, (c) the parties’ intentional participation in the furtherance of a plan or purpose, and (d) the resulting damage or injury.” Chrysler Capital Corp., 778 F.Supp. at 1267. See also Kashi v. Gratsos, 790 F.2d 1050, 1055 (2d Cir.1986) (Winter, J.). Through" }, { "docid": "1686511", "title": "", "text": "688 N.Y.S.2d 25 (1st Dep’t) (vacating the New York Supreme Court’s judgment insolar as it dismissed the petition against Sohrab and otherwise affirming), leave to appeal denied, 93 N.Y.2d 817, 697 N.Y.S.2d 564, 719 N.E.2d 925 (1999). . See First Capital Asset Mgmt., Inc. v. N.A. Partners, L.P., No. 97/602189 (N.Y. Sup.Ct., N.Y. Co. June 27, 2001). . See Oost-Lievense v. North Am. Consortium, Inc., 969 F.Supp. 874 (S.D.N.Y.1997) (HB). . 11 U.S.C. § 727. . See In re Vahabzadeh, Sohrab, No. 97-44779(JHG) (Bankr.S.D.N.Y. Dec. 10, 1999) (chapter 7 case); First Capital Asset Mgmt., Inc. v. Vahabzadeh, No. 97-9107A (Bankr. S.D.N.Y. Dec. 10, 1999) (adversary proceeding). . Cpl. ¶ 152. . Plaintiffs' notice of cross-motion (Mar. 10, 2001). . E.g., Arrowsmith v. United Press Int'l, 320 F.2d 219, 221 (2d Cir.1963) (Friendly, J.). . E.g., Laborers Local 17 Health & Benefit Fund v. Philip Morris, 26 F.Supp.2d 593, 601 (S.D.N.Y.1998) (citing cases); Travelers Indem. Co. v. Inoue, 111 A.D.2d 686, 490 N.Y.S.2d 506, 507 (1st Dep’t 1985). . E.g., Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.), cert. denied, 498 U.S. 854, 111 S.Ct. 150, 112 L.Ed.2d 116 (1990). . De Falco v. Bernas, 244 F.3d 286, 305 (2d Cir.2001) (quoting Pinnacle Consultants, Ltd. v. Leucadia Nat’l Corp., 101 F.3d 900, 904 (2d Cir.1996)) (internal quotation marks omitted). . Cpt. ¶¶ 82-108, 152(a). . See Memorandum of law in support of Vahabzadeh defendants' motion to dismiss, at 11-12; Cpt. ¶¶ 87, 100 (“These transfers violated § 152(7) of the Bankruptcy Code because they were made at a time when Sohrab was contemplating filing for bankruptcy and were implemented with the intention of defeating the purpose of the bankruptcy code.”); id. ¶ 152(a) (same). . Acito v. IMCERA Group, 47 F.3d 47, 52 (2d Cir.1995). . E.g., Moore v. PaineWebber, Inc., 189 F.3d 165, 173 (2d Cir.1999). . Hallwood Realty Partners v. Gotham Partners, L.P., 95 F.Supp.2d 169, 174 (S.D.N.Y. 2000) (quoting Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994)). . See Cpt. ¶ 26. . Moore, 189 F.3d at 172-73 (\"[The complaint must] specify" }, { "docid": "5957081", "title": "", "text": "interests in Soleyman's Estate. See, e.g., First Nationwide Bank, 27 F.3d at 771 (the principle that unwarranted deductions of fact are not credited applies with special force in fraud cases governed by Rule 9(b)). Plaintiffs appear to contend also that Sohrab did in fact inherit the entirety of Soleyman's Estate, which he then transferred to Afsar overseas. But there are no specifics regarding when or by what means this alleged transfer took place. . See Sabbeth, 262 F.3d at 212-13. . FCAM I, 150 F.Supp.2d at 631 & n. 12. . E.g., Simon v. Philip Morris, Inc., 86 F.Supp.2d 95, 119-20 (E.D.N.Y.2000); Laborers Local 17 Health & Benefit Fund v. Philip Morris, Inc., 26 F.Supp.2d 593, 602 (S.D.N.Y.1998); see also Grove Press, Inc. v. Angleton, 649 F.2d 121, 122 (2d Cir.1981). . Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981); accord Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 153 (2d Cir.1999); Roberts-Gordon, LLC v. Superior Radiant Prods., Ltd., 85 F.Supp.2d 202, 208 (W.D.N.Y.2000); Universal Marine Med. Supply, Inc. v. Lovecchio, 8 F.Supp.2d 214, 218 (E.D.N.Y.1998). . Plaintiffs complain that defendants have obstructed their discovery efforts. They argue that because defendants have deprived them of needed discovery, they should not have to bolster their jurisdictional allegations with factual support, apparently agreeing with defendants that after discovery but prior to an evidentiary hearing or trial, some factual support normally is required to survive a jurisdiction-testing motion. See PL Mem. 41. This motion is not the proper context in which to raise such concerns, as plaintiffs could have moved the Court to compel discovery at the time of the alleged infractions. In any case, the matters about which plaintiffs complain all revolve around ownership and control of bank accounts overseas, see PL Mem. 3, Berry Aff. Ex. 3 ¶¶ 41, 42, 43, 44, 77, 101; id. Ex. 5, at 3, issues which are not material to the Court’s jurisdictional determinations here. Accordingly, plaintiffs' argument does not convince the Court that it should apply the standard applicable to Rule 12(b)(2) motions prior to jurisdictional discovery. . 902" }, { "docid": "10117643", "title": "", "text": "soon as possible. Realistically this is March 8 it probably going to be after the first of the month. I’ve got a trial coming up and some things that are going to keep me hopping over the next 22 days. So it will probably be the first of April but I’ll try to get an opinion out to you as soon as possible. All right, I have reviewed your joint status report and provisional discovery plan, if everybody wants me to go ahead and set some dates while we’re together, Tr. at 20:11-21:10 (Court, Gabaldon, Mueh-lenweg). STANDARD FOR DETERMINING RULE 12(b)(2) MOTIONS Motions to dismiss under rule 12(b)(2) test the plaintiffs theory of personal jurisdiction as well as the facts supporting personal jurisdiction. See Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 153-54 (2d Cir.1999). Rule 12(b)(2) concerns lack of personal jurisdiction. See Fed. R. Civ. P. 12(b)(2). In determining personal jurisdiction, a court must test not only the complaint’s jurisdictional theory, but also the facts on which jurisdiction is predicated. See Credit Lyonnais Sec. (USA), Inc. v. Acantara, 183 F.3d at 154 (holding that the court “must determine whether the defendant in fact subjected itself to the court’s jurisdiction”). Where a defendant raises a timely challenge contesting personal jurisdiction, the plaintiff bears the burden of establishing that there is personal jurisdiction over the defendant and that the exercise of personal jurisdiction would not violate due-process requirements. See Overton v. United States, 925 F.2d 1282, 1283 (10th Cir.1991); Rambo v. Am. S. Ins. Co., 839 F.2d 1415, 1417 (10th Cir.1988); Jemez Agency, Inc. v. CIGNA Corp., 866 F.Supp. 1340, 1342 (D.N.M.1994)(Burciaga, J). At this stage of the proceedings, it is not for the court to resolve disputed’ facts. See Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 45 (1st Cir.2002). Rather, the court “ ‘must accept the plaintiffs (properly documented) evidentiary proffers as true for the purpose of determining the adequacy of the prima facie jurisdictional showing.’ ” Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d at 45 (quoting Foster-Miller, Inc." }, { "docid": "5957080", "title": "", "text": "death[] and continuing through his bankruptcy, Sohrab received several wire transfers from the unnamed \"un de nos clients” account at ABN AMRO in Geneva. In his bankruptcy case, Sohrab testified that he \"might have” told [his account executive] that he had sent these funds from Europe.” This allegation does nothing to identify when Sohrab transferred, and Afsar unlawfully received, his purported inheritance from Soleyman's Estate. . Plaintiffs do allege that Sohrab \"transferred his statutory rights to his mother, Afsar and brother, Iradj, and to his other siblings,” and that he “waived his statutory interest in the real estate, bank accounts, corporate stock ..., and other business interests ... held in Soleyman’s Estate,” \"resulting] in Afsar and Iradj ... receiving the portions of Soleyman's Estate which would have otherwise devolved to Sohrab.” Am. Cpt. ¶¶ 117— 118. Yet this allegation is flatly contradicted by plaintiffs simultaneous allegation that \"Sohrab did not disclaim or renounce any participation in Soleyman's [Estate],” id. at 149(b)(i), and the undisputed fact that Afsar and Sohrab’s siblings did in fact disclaim their interests in Soleyman's Estate. See, e.g., First Nationwide Bank, 27 F.3d at 771 (the principle that unwarranted deductions of fact are not credited applies with special force in fraud cases governed by Rule 9(b)). Plaintiffs appear to contend also that Sohrab did in fact inherit the entirety of Soleyman's Estate, which he then transferred to Afsar overseas. But there are no specifics regarding when or by what means this alleged transfer took place. . See Sabbeth, 262 F.3d at 212-13. . FCAM I, 150 F.Supp.2d at 631 & n. 12. . E.g., Simon v. Philip Morris, Inc., 86 F.Supp.2d 95, 119-20 (E.D.N.Y.2000); Laborers Local 17 Health & Benefit Fund v. Philip Morris, Inc., 26 F.Supp.2d 593, 602 (S.D.N.Y.1998); see also Grove Press, Inc. v. Angleton, 649 F.2d 121, 122 (2d Cir.1981). . Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981); accord Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 153 (2d Cir.1999); Roberts-Gordon, LLC v. Superior Radiant Prods., Ltd., 85 F.Supp.2d 202, 208 (W.D.N.Y.2000); Universal Marine Med. Supply, Inc." }, { "docid": "7967794", "title": "", "text": "811, 110 S.Ct. 56, 107 L.Ed.2d 24 (1989)). . See, e.g., Cofacredit, 187 F.3d at 244; GICC Capital Corp. II, 67 F.3d at 467-68. . Am Cpt. ¶ 162(a)-(g). Plaintiffs alleged two further predicate acts that are duplicative of the previously alleged acts of filing a false petition and committing perjury at the adversary proceeding trial. See ¶ 162(h), (i). . Id. ¶ 162(a), (b), (d), (g). . Id. ¶ 162(c). . Id. ¶ 162(e), (f). . PI. Mem. 10. . 119 F.3d 91 (2d Cir.1997). . FCAM I, 150 F.Supp.2d at 636. . Am. Cpt. ¶ 162(a). The Court does not consider the alleged transfer of Sohrab's inheritance to Afsar in \"early 1997\" because this allegation fails for lack of particularity. See supra note 38. . Am. Cpt. ¶ 147(h)(iii). . GICC Capital Corp. II, 67 F.3d at 467 (internal quotation marks omitted). . PI. Mem. 13. In so doing, plaintiffs run afoul of the “singular act” language from Schlaifer Nance. See 119 F.3d at 98. . See, e.g., De Falco, 244 F.3d at 321. . See, e.g., GICC Capital Corp. II, 67 F.3d at 468 (\"[P]laintiff does not identify any other victims, nor state in anything but general terms the nature of their purported injuries.”). . Plaintiffs themselves concede that a conservative estimate would be nine acts, although this estimate includes some of the flaws discussed above and fails to include four of the seven pre-petition transfers to Nin-ni and her family. See PL Mem. 13-14. . See GICC Capital Corp. II, 67 F.3d at 469. . The Court dismisses the RICO claim against Sohrab sua sponte, despite his failure to move. See supra text accompanying notes 22-24. . See Discon, Inc. v. NYNEX Corp., 93 F.3d 1055, 1064 (2d Cir.1996), vacated on other grounds, 525 U.S. 128, 119 S.Ct. 493, 142 L.Ed.2d 510 (1998); Blue Cross & Blue Shield of N.J., Inc. v. Philip Monis, Inc., 113 F.Supp.2d 345, 385 (E.D.N.Y.2000); Piccone v. Bd. of Dir. of Doctors Hosp. of Staten Island, Inc., No. 97 Civ. 8182(MBM), 2000 WL 1219391, at *7 (S.D.N.Y. Aug.28, 2000). . See" }, { "docid": "4153427", "title": "", "text": "the forum. See id. In Laborers Local 17 Health & Benefit Fund v. Philip Morris, Inc., 26 F.Supp.2d 593, 601 (S.D.N.Y.1998), vacated on other grounds, 191 F.3d 229 (2d Cir.1999), the court recognized “significant support in the New York case law ... for the exercise of jurisdiction based on conspiracy,” id. at 601, but granted BAT’s motion to dismiss on the ground that all of the plaintiffs’ allegations of conspiracy concerned activities which took place before BAT’s 1976 formation. Plaintiffs were granted leave to file an Amended Complaint to plead additional facts connecting BAT to the alleged conspiracy. See id. at 604. Courts of a number of other jurisdictions have also exercised conspiracy-based jurisdiction over BAT. See, e.g., Arkansas Blue Cross and Blue Shield v. Philip Morris, Inc., No. 98 C 2612, 1999 WL 202928 (N.D.Ill. March 31, 1999) (jurisdiction over BAT could be proper on a conspiracy theory); Montana ex rel. Mazurek v. Philip Morris, Inc., No. CDV-97-306 slip op. at 8 (Mont. 1st Jud. Dist.Ct. Sept. 22, 1998) (sufficient showing of personal jurisdiction over BAT on basis of conspiracy); Washington v. American Tobacco Co., No. 96-2-15056-8 SEA, slip op. at 10-12 (Wash.Super.Ct. June 9, 1998) (BAT’s knowing and intentional participation in alleged tobacco industry conspiracy provided sufficient contacts with Washington to support exercise of jurisdiction); Northwest Laborers-Employers Health & Security Trust Fund v. Philip Morris, Inc., No. C97-849WD, slip op. at 2 (W.D.Wash. May 13, 1998) (plaintiff established prima facie case of conspiracy-based personal jurisdiction); Oklahoma v. R.J. Reynolds Tobacco Co., No. CJ-96-1499 (Okla.Dist. Ct. Dec. 8, 1997) (sufficient evidence that BAT was involved and participated in tobacco-related conspiracy to commit tor-tious acts to support exercise of jurisdiction). Defendant contends that a parent and its subsidiary cannot civilly conspire. Even were this contention true, it would not affect BAT’s jurisdictional status since, as already demonstrated, it also conspired with non-BAT Group entities comprising essentially the entire United States tobacco industry. In any event, research uncovers no rule in this circuit such as that defendant professes outside the special Sherman Act context. See Copperweld Corp. v. Independence Tube Corp.," }, { "docid": "5957078", "title": "", "text": "least for purposes of this standing determination. . Am. Cpt. ¶ 165. . Am. Cpt. ¶¶ 117, 148, 149. . Id. at 150. . Id. at 152. . Id. at 153. . Id. at 154. . Id. at 148, 149. . The First Capital v. Vahabzadeh adversary proceeding commenced on November 3, 1997. Berry Aff. Ex. 6, at 5. These predicate acts all occurred in the context of plaintiffs’ attempts to gather discovery in that action. See Am. Cpt. ¶¶ 150-154. . McRory Aff. Ex. G, Berry Dep. 113-14. . United States v. Sabbeth, 262 F.3d 207, 212-13 (2d Cir.2001) (citing 18 U.S.C. § 152(7)). . FCAM I, 150 F.Supp.2d at 632-33; see also Browne v. Abdelhak., No. Civ. A. 98-6688, 2000 WL 1201889, at *8 (E.D.Pa. Aug. 23, 2000) (Rule 9(b) applies to allegations of bankruptcy fraud under 18 U.S.C. § 152(7)); In re Sattlers, Inc., 73 B.R. 780, 787 n. 7 (Bankr.S.D.N.Y.1987) ('‘[B]ankruptcy fraud ..., like other RICO violations predicated in fraud, must be pleaded with particularity.”). . FCAMI, 150 F.Supp.2d at 632-33. . Am. Cpt. ¶¶ 149, 150. . Plaintiffs allege only that it happened in \"early 1997.” Am. Cpt. ¶ 117. Their argument that they have narrowed the time of the transfer to between July 1, 1997 and July 16, 1997 is nonsensical and at odds with the allegations of the complaint. See PL Mem. 29. As discussed immediately below, the fact that money was coming to Sohrab from Switzerland does nothing to establish when or how Afsar allegedly received assets from Soh-rab. Plaintiffs vehemently contend that their allegations regarding one episode satisfy Rule 9(b)'s particularity requirements. In paragraph 149(b)(iii).of the amended complaint, plaintiffs allege that \"[i]n early July 1997— after Soleyman's death and just before Soh-rab’s bankruptcy filing — Sohrab stated to his account officer at J.P. Morgan ... that he had himself remitted $5,000 to his J.P. Morgan account .... The only $5,000 transfer remitted to Sohrab's account at the time was a wire transfer from ABN AMRO in Geneva which ... originated from an unidentified \"un de nos clients.” Beginning shortly after Soleyman's" }, { "docid": "7967789", "title": "", "text": "make a formal motion, the court on its own initiative may note the inadequacy of the complaint and dismiss it for failure to state a claim as long as the procedure employed is fair.”). . Plaintiffs fully addressed also the sufficiency of the claims against Afsar under Section 1962(c) and (d). . United. States v. Sabbeth, 262 F.3d 207, 212-13 (2d Cir.2001). . FCAM II, 218 F.Supp.2d at 385; see, e.g., First Capital Asset Mgmt., Inc. v. Brickelbush, Inc., 150 F.Supp.2d 624, 632-33 (S.D.N.Y.2001) (\"FCAM I\"); Browne v. Abdelhak, No. Civ. A. 98-6688, 2000 WL 1201889, at *8 (E.D.Pa. Aug.23, 2000); In re Sattler’s, Inc., 73 B.R. 780, 787 n. 7 (Bankr.S.D.N.Y.1987). . Nat’l Council of Young Israel v. Wolf, 963 F.Supp. 276, 281 (S.D.N.Y.1997). . Id. (quoting Spira v. Nick, 876 F.Supp. 553, 557 (S.D.N.Y.1995)). . Shields v. Citytrust Bancorp., Inc., 25 F.3d 1124, 1128 (2d Cir.1994). . FCAM I, 150 F.Supp.2d at 632. . Am. Cpt. ¶ 57. . Id. ¶ 103. . Id. ¶¶ 74, 89. . See United States v. West, 22 F.3d 586, 590 (5th Cir.), cert. denied, 513 U.S. 1020, 115 S.Ct. 584, 130 L.Ed.2d 498 (1994); United States v. Tashjian, 660 F.2d 829, 842 (1st Cir.1981), cert. denied, 454 U.S. 1102, 102 S.Ct. 681, 70 L.Ed.2d 646 (1981); Burke v. Dowling, 944 F.Supp. 1036, 1065-66 (E.D.N.Y.1995). . See, e.g., Burke, 944 F.Supp. at 1066 (holding that plaintiffs failed to plead bankruptcy fraud with particularity when they alleged that they were “incurring obligations that they knew they could not meet,” but failed to allege \"that any defendant ever gave any thought to the prospect of filing for bankruptcy in a U.S. court.” (emphasis added)). . Am. Cpt. ¶ 57 (emphasis added). . Id. ¶ 19. Indeed, plaintiffs continue to make 1997 the start of the alleged RICO pattern in their latest filing. PL Mem. Opp. Recon. 4 (Sept. 6, 2002). . See, e.g., FCAM I, 150 F.Supp.2d at 633 (citing GICC Capital Corp. v. Technology Fin. Group, Inc., 67 F.3d 463, 467 (2d Cir.1995) {“GICC Capital Corp. II\"), cert. denied, 518 U.S. 1017, 116" }, { "docid": "7967788", "title": "", "text": "447, 121 L.Ed.2d 313 (1992) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895)). . Am. Cpt. ¶ 20. There is no complete diversity because plaintiff First Capital Asset Management, Inc. and defendant Satinwood, Inc. are both Delaware corporations. See id. ¶¶ 1, 3. . The notice of motion indicated that the moving defendants were seeking an order, inter alia, \"dismissing all claims pursuant to Rule 12(b)(1) for lack of standing and subject matter jurisdiction.\" . Ohio Cas. Ins. Co. v. Mohan, 350 F.2d 54, 57 (3d Cir.1965); Sell v. Price, 527 F.Supp. 114, 117-18 (S.D.Ohio 1981). . See, e.g., Wachtler v. County of Herkimer, 35 F.3d 77, 82 (2d Cir.1994); Perez v. Ortiz, 849 F.2d 793, 797 (2d Cir.1988); Leonhard v. United States, 633 F.2d 599, 609 n. 11 (2d Cir.1980), cert. denied, 451 U.S. 908, 101 S.Ct. 1975, 68 L.Ed.2d 295 (1981); 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2D § 1357, at 301 (1990) (\"Even if a party does not make a formal motion, the court on its own initiative may note the inadequacy of the complaint and dismiss it for failure to state a claim as long as the procedure employed is fair.”). . Plaintiffs fully addressed also the sufficiency of the claims against Afsar under Section 1962(c) and (d). . United. States v. Sabbeth, 262 F.3d 207, 212-13 (2d Cir.2001). . FCAM II, 218 F.Supp.2d at 385; see, e.g., First Capital Asset Mgmt., Inc. v. Brickelbush, Inc., 150 F.Supp.2d 624, 632-33 (S.D.N.Y.2001) (\"FCAM I\"); Browne v. Abdelhak, No. Civ. A. 98-6688, 2000 WL 1201889, at *8 (E.D.Pa. Aug.23, 2000); In re Sattler’s, Inc., 73 B.R. 780, 787 n. 7 (Bankr.S.D.N.Y.1987). . Nat’l Council of Young Israel v. Wolf, 963 F.Supp. 276, 281 (S.D.N.Y.1997). . Id. (quoting Spira v. Nick, 876 F.Supp. 553, 557 (S.D.N.Y.1995)). . Shields v. Citytrust Bancorp., Inc., 25 F.3d 1124, 1128 (2d Cir.1994). . FCAM I, 150 F.Supp.2d at 632. . Am. Cpt. ¶ 57. . Id. ¶ 103. . Id. ¶¶ 74, 89. . See United States v. West," }, { "docid": "5957077", "title": "", "text": "1997 meeting. See Berry Aff. Ex. 9, Sohrab Dep. 10 (indicating that Ahmed called the meeting to explain that there were no assets left in Soley-man's Estate and to recommend that the family repudiate the estate). Given the virtual impossibility of uncovering direct proof regarding the formation of a conspiracy, it is commonplace to infer the existence of a conspiracy from circumstantial evidence, including the apparently concerted action of co-conspirators. E.g., United States v. Bin Laden, 92 F.Supp.2d 225, 242 (S.D.N.Y.2000). Here, plaintiff produced letters to Sohrab intended for the bankruptcy court, written by Ahmed, his alleged alter ego Afiwa, and Afsar. See Berry Aff. Exs. 13, 15, 16. A reasonable trier of fact might conclude that these letters illustrate a concerted effort to \"stonewall” the bankruptcy court. While an admittedly thin reed to hang on, this evidence, along with more general evidence regarding the extent to which the Vahabzadeh family businesses are intertwined, see Barry Aff. Ex. 2 passim, is sufficient to create an issue of fact regarding the existence of the conspiracy, at least for purposes of this standing determination. . Am. Cpt. ¶ 165. . Am. Cpt. ¶¶ 117, 148, 149. . Id. at 150. . Id. at 152. . Id. at 153. . Id. at 154. . Id. at 148, 149. . The First Capital v. Vahabzadeh adversary proceeding commenced on November 3, 1997. Berry Aff. Ex. 6, at 5. These predicate acts all occurred in the context of plaintiffs’ attempts to gather discovery in that action. See Am. Cpt. ¶¶ 150-154. . McRory Aff. Ex. G, Berry Dep. 113-14. . United States v. Sabbeth, 262 F.3d 207, 212-13 (2d Cir.2001) (citing 18 U.S.C. § 152(7)). . FCAM I, 150 F.Supp.2d at 632-33; see also Browne v. Abdelhak., No. Civ. A. 98-6688, 2000 WL 1201889, at *8 (E.D.Pa. Aug. 23, 2000) (Rule 9(b) applies to allegations of bankruptcy fraud under 18 U.S.C. § 152(7)); In re Sattlers, Inc., 73 B.R. 780, 787 n. 7 (Bankr.S.D.N.Y.1987) ('‘[B]ankruptcy fraud ..., like other RICO violations predicated in fraud, must be pleaded with particularity.”). . FCAMI, 150 F.Supp.2d at 632-33." }, { "docid": "1686510", "title": "", "text": "a Rule 12(b) motion, both sides have submitted materials in addition to the pleadings. The Court in appropriate circumstances may consider such materials and thereby convert the motion to one for summary judgment. But these are not such circumstances. Sawyer v. Am. Fed’n of Gov’t Employees, 180 F.3d 31, 34 (2d Cir.1999); Sultan v. New York City Dep’t of Bldgs., 99 Civ. 8615(LAK), 2000 WL 262923, at *1 (S.D.N.Y. Mar. 7, 2000). Moreover, neither party has complied with Local Rule 56.1. Accordingly, the Court excludes the materials outside the complaint for the purposes of deciding this motion, taking the plaintiff's well-pleaded factual allegations as true and drawing all reasonable inferences in the plaintiffs' favor. . See First Capital v. North Am. Consortium, No. 133996/94 (N.Y. Sup.Ct., N.Y. Co. Feb. 27, 1997). . See First Capital Asset Mgmt., Inc. v. N.A. Partners, North Am. Capital Guar., Inc., the Estate of Soleyman Vahabzadeh & Sohrab Vahabzadeh, No. 97/602189 (N.Y.Sup.Ct., N.Y.Co. Oct. 22, 1998). . See First Capital Asset Mgmt., Inc. v. N.A. Partners, L.P., 260 A.D.2d 179, 688 N.Y.S.2d 25 (1st Dep’t) (vacating the New York Supreme Court’s judgment insolar as it dismissed the petition against Sohrab and otherwise affirming), leave to appeal denied, 93 N.Y.2d 817, 697 N.Y.S.2d 564, 719 N.E.2d 925 (1999). . See First Capital Asset Mgmt., Inc. v. N.A. Partners, L.P., No. 97/602189 (N.Y. Sup.Ct., N.Y. Co. June 27, 2001). . See Oost-Lievense v. North Am. Consortium, Inc., 969 F.Supp. 874 (S.D.N.Y.1997) (HB). . 11 U.S.C. § 727. . See In re Vahabzadeh, Sohrab, No. 97-44779(JHG) (Bankr.S.D.N.Y. Dec. 10, 1999) (chapter 7 case); First Capital Asset Mgmt., Inc. v. Vahabzadeh, No. 97-9107A (Bankr. S.D.N.Y. Dec. 10, 1999) (adversary proceeding). . Cpl. ¶ 152. . Plaintiffs' notice of cross-motion (Mar. 10, 2001). . E.g., Arrowsmith v. United Press Int'l, 320 F.2d 219, 221 (2d Cir.1963) (Friendly, J.). . E.g., Laborers Local 17 Health & Benefit Fund v. Philip Morris, 26 F.Supp.2d 593, 601 (S.D.N.Y.1998) (citing cases); Travelers Indem. Co. v. Inoue, 111 A.D.2d 686, 490 N.Y.S.2d 506, 507 (1st Dep’t 1985). . E.g., Ball v. Metallurgie Hoboken-Overpelt, S.A., 902" }, { "docid": "638577", "title": "", "text": "not admit conclusions of law.” Leider v. Ralfe, 2004 WL 1773330, at *7 (S.D.N.Y.2004) (quoting In re Indus. Diamonds Antitrust Litig., 119 F.Supp.2d 418, 420 (S.D.N.Y. 2000)). A defendant’s default also does not constitute an admission of allegations pertaining to the amount of damages. See Finkel v. Romanowicz, 577 F.3d 79, 83 n. 6 (2d Cir.2009) (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir.1992)). A default merely establishes that damages were proximately caused by the defaulting party’s conduct; that is, the acts pleaded in a complaint violated the laws upon which a claim is based and caused injuries as alleged. See Greyhound, 973 F.2d at 159. The movant need prove “only that the compensation sought relate[s] to the damages that naturally flow from the injuries pleaded.” Id. If the facts are sufficient to establish liability as to the asserted claims, the court must then conduct an inquiry to determine the amount of damages to a “reasonable certainty.” Credit Lyonnais Secs. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir.1999) (quoting Transatl. Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997)). The moving party is entitled to all reasonable inferences from the evidence it offers. See Romanowicz, 577 F.3d at 84; Au Bon Pain, 653 F.2d at 65 (citing TWA Inc. v. Hughes, 308 F.Supp. 679, 683 (S.D.N.Y.1969)). In determining the amount of damages, the court may require an evidentiary hearing or rely on detailed affidavits or documentary evidence. See Chun Jie Yin v. Kim, 2008 WL 906736, at *2 (E.D.N.Y.2008) (collecting cases); Fed. R. Civ.P. 55(b)(2). II. Liability A. Fair Labor Standards Act Congress enacted the FLSA in an effort to “protect all covered workers from substandard wages and oppressive working hours, ‘labor conditions [that are] detrimental to the maintenance of the minimum standard of living necessary for the health, efficiency and general well-being of workers.’” Barrentine v. Arkansas-Best Freight Sys. Inc., 450 U.S. 728, 739, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981) (quoting 29 U.S.C. § 202(a) (footnote omitted)). The remedial statute applies to all “employers,”" }, { "docid": "5957082", "title": "", "text": "v. Lovecchio, 8 F.Supp.2d 214, 218 (E.D.N.Y.1998). . Plaintiffs complain that defendants have obstructed their discovery efforts. They argue that because defendants have deprived them of needed discovery, they should not have to bolster their jurisdictional allegations with factual support, apparently agreeing with defendants that after discovery but prior to an evidentiary hearing or trial, some factual support normally is required to survive a jurisdiction-testing motion. See PL Mem. 41. This motion is not the proper context in which to raise such concerns, as plaintiffs could have moved the Court to compel discovery at the time of the alleged infractions. In any case, the matters about which plaintiffs complain all revolve around ownership and control of bank accounts overseas, see PL Mem. 3, Berry Aff. Ex. 3 ¶¶ 41, 42, 43, 44, 77, 101; id. Ex. 5, at 3, issues which are not material to the Court’s jurisdictional determinations here. Accordingly, plaintiffs' argument does not convince the Court that it should apply the standard applicable to Rule 12(b)(2) motions prior to jurisdictional discovery. . 902 F.2d 194 (2d Cir.), cert. denied, 498 U.S. 854, 111 S.Ct. 150, 112 L.Ed.2d 116 (1990). . Id. at 197. . Id. . See Barrett v. United States, 646 F.Supp. 1345, 1350 (S.D.N.Y.1986); accord Dardana Ltd. v. Yuganskneftegaz, No. 00 Civ. 4633(DAB), 2001 WL 1131987, at *2 (S.D.N.Y. Sept. 24, 2001); Coan v. Bell Atl. Sys. Leasing Int’l, Inc., 813 F.Supp. 929, 942 (D.Conn.1990); see also Jazini v. Nissan Motor Co., 148 F.3d 181, 184, 185 (2d Cir.1998); Cornell v. Assicurazioni Generali S.p.A., No. 97 Civ. 2262, 2000 WL 1099844, at *1 (S.D.N.Y. Aug. 7, 2000) (quoting Jazini, 148 F.3d at 185). . Yellow Page Solutions, Inc. v. Bell Atl. Yellow Pages Co., No. 00 Civ. 5663(MBM), 2001 WL 1468168, at *3 (S.D.N.Y. Nov. 19, 2001) (quoting Ball, 902 F.2d at 197) (footnote added); accord Morrison v. N.Y. State Div. for Youth Children & Family Servs., No. 98 Civ. 643, 2000 WL 532762, at *1 (S.D.N.Y. Apr. 25, 2000); Gulf Union Ins. Co. Saudi Arabia v. Bella Shipping Co., No. 91 Civ. 2814(PKL), 1994 WL" }, { "docid": "4153350", "title": "", "text": "for massive damage. II. STANDARD OF PROOF Predicating subject matter jurisdiction on diversity of citizenship, plaintiffs’ Amended Complaint alleges causes of action sounding in negligence, strict product liability, fraudulent concealment and civil conspiracy. The instant motion challenging personal jurisdiction was filed pursuant to Rule 12(b)(2). Plaintiffs presented over five hundred exhibits from prior litigations in opposition. BAT responded with more documents. Given the voluminousness of the submissions, the motion was converted to one for summary judgment with the parties’ consent. The burden of establishing personal jurisdiction is on the plaintiffs. The extent of this obligation depends both upon whether discovery has taken place and upon the nature of the jurisdictional challenge. See Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.), cert. denied, 498 U.S. 854, 111 S.Ct. 150, 112 L.Ed.2d 116 (1990). “Prior to discovery, a plaintiff challenged by a jurisdiction test ing motion may defeat the motion by pleading in good faith legally sufficient allegations of jurisdiction.” Id. (citation omitted). Where relevant discovery has been extensive, the plaintiffs allegations must be supported by “an averment of facts that if credited by the trier, would suffice to establish jurisdiction over the defendant.” Id. If personal jurisdiction is, as here, contested via a summary judgment motion, “the court proceeds, as with any summary judgment motion, to determine if undisputed facts exist that warrant the relief sought.” Id.; see also Fed.R.Civ.P. 56. Ultimately, the plaintiff bears the burden of establishing personal jurisdiction over the defendant by a preponderance of the evidence, either at an evidentiary hearing or at trial. See, e.g., Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 154 (2d Cir.1999); CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir.1986). Short of such a hearing or a trial, plaintiffs burden remains to establish a prima facie case. See Tilyou v. Carroll, No. 92 CV 0750, 1992 WL 170916, at *3 (E.D.N.Y. July 2, 1992). Since there has been neither a factual hearing nor a trial, but discovery has been substantial, plaintiffs must establish a factually supported prima facie case of jurisdiction. They have done" }, { "docid": "4153426", "title": "", "text": "out-of-state defendant. Chrysler Capital, 778 F.Supp. at 1268-69 (quoting Dixon, 507 F.Supp. at 350). 2. Application of Law to Facts First, it should be noted that New York state and federal courts have recognized the applicability of the conspiracy theory of jurisdiction to BAT in other tobacco litigations. In Small v. Lorillard Tobacco Co., 672 N.Y.S.2d 601, 176 Misc.2d 413 (Sup.Ct.N.Y.Cty.1997), vacated on other grounds, 252 A.D.2d 1, 679 N.Y.S.2d 593 (1st Dep’t 1998), aff'd, 94 N.Y.2d 43, 720 N.E.2d 892, 698 N.Y.S.2d 615 (1999), the court found sufficient support in the record to assert conspiracy-based jurisdiction over BAT. The appellate division approved in dictum, agreeing that plaintiffs had created an issue of fact as to whether BAT had instructed its subsidiaries to enhance the addictiveness of their products and to hide results of research on addiction. See 252 A.D.2d at 17, 679 N.Y.S.2d at 605. The major impact that BAT’s actions could have had, on the manner in which cigarettes were sold in New York, was deemed sufficient to substantially connect the conspiracy to the forum. See id. In Laborers Local 17 Health & Benefit Fund v. Philip Morris, Inc., 26 F.Supp.2d 593, 601 (S.D.N.Y.1998), vacated on other grounds, 191 F.3d 229 (2d Cir.1999), the court recognized “significant support in the New York case law ... for the exercise of jurisdiction based on conspiracy,” id. at 601, but granted BAT’s motion to dismiss on the ground that all of the plaintiffs’ allegations of conspiracy concerned activities which took place before BAT’s 1976 formation. Plaintiffs were granted leave to file an Amended Complaint to plead additional facts connecting BAT to the alleged conspiracy. See id. at 604. Courts of a number of other jurisdictions have also exercised conspiracy-based jurisdiction over BAT. See, e.g., Arkansas Blue Cross and Blue Shield v. Philip Morris, Inc., No. 98 C 2612, 1999 WL 202928 (N.D.Ill. March 31, 1999) (jurisdiction over BAT could be proper on a conspiracy theory); Montana ex rel. Mazurek v. Philip Morris, Inc., No. CDV-97-306 slip op. at 8 (Mont. 1st Jud. Dist.Ct. Sept. 22, 1998) (sufficient showing of personal jurisdiction" }, { "docid": "2013545", "title": "", "text": "state law. See Blue Cross and Blue Shield v. Philip Morris, Inc., 36 F.Supp.2d 560 (E.D.N.Y.1999). Federal causes of action are brought under the Racketeer Influenced and Corrupt Organizations Act (“RICO”) and federal antitrust statutes. Supplemental state law claims are asserted under various state statutes and common-law theories. B. National Asbestos In National Asbestos Workers Medical Fund v. Philip Morris, Inc. (“National Asbestos”), the plaintiffs are self-insured ERISA trust funds which provide health care insurance to union workers in the building trades. See National Asbestos Workers Med. Fund v. Philip Morris, Inc., 23 F.Supp.2d 321 (E.D.N.Y.1998). Plaintiffs seek damages to trust assets allegedly caused by Tobacco. Federal causes of action are brought under RICO, ERISA and federal common-law theories of unjust enrichment, restitution, indemnity, and breach of assumed duty. C. H.K. Porter Company, Inc. In H.K. Porter Company, Inc. v. American Tobacco Co. (“H.K.Porter”), plaintiff is an asbestos distributor that had previously been sued in extensive litigation for injuries resulting from its products. It has paid substantial sums in both settlements and judgments after trials. It brings this suit under RICO and a number of state law theories, including fraud, contribution, and restitution. Its claim is that some or all of the damages it paid were in fact caused by Tobacco. Among other theories, plaintiff contends that it would have impleaded the defendants in many cases had the defendants not fraudulently concealed their own liability for damages. II. PROCEDURE A. Blue and National Asbestos Defendants sought dismissal of both Blue Cross and National Asbestos. The thrust of defendants’ motions to dismiss was that Laborers Local 17 Health & Benefit Fund v. Philip Morris, Inc., 191 F.3d 229 (2d Cir.1999), superseding 172 F.3d 223 (2d Cir.1999), rejects the plaintiffs’ federal causes of action and requires dismissal of all state law claims for lack of jurisdiction. Laborers Local 17 held that the plaintiffs’ injuries in that case were too remote — i.e., were not proximately caused — to support a cause of action under RICO. Several relevant distinctions between Laborers Local 17 and these two cases made dismissal at the pleadings stage" }, { "docid": "16335954", "title": "", "text": "false testimony about his inheritance at his bankruptcy trial in October 1999. ■ From September 1997 to December 1999, Afsar “accessed” Sohrab’s overseas accounts, transferring approximately $5000 per month from those accounts first into her accounts and then into Sohrab’s domestic accounts. Ahmed also transferred money to Sohrab at least once, on October 3, 1998. Schle-gelmilch, too, transferred money to Soh-rab on at least two occasions — August 4 and November 3, 1998. And finally, Schlegelmilch and Ahmed paid Sohrab’s legal fees — “including one payment in the amount of either $15,000 or $25,-000” — in September 1999. Satinwood, Sphinx Rock, Ahmed, Savco, and Soleyman’s Estate (collectively, the “Moving Defendants”) moved to dismiss the Complaint pursuant to: Fed.R.Civ.P. 12(b)(6), for failure to state a claim; Fed. R.Civ.P. 9(b), on the ground that the predicate acts were not pleaded with sufficient particularity; and Fed.R.Civ.P. 12(b)(1), for lack of standing and subject matter jurisdiction. The Moving Defendants also moved to dismiss all claims against Afsar, Ahmed, and AFIWA under Fed.R.Civ.P. 12(b)(2), for lack of personal jurisdiction. Defendants Brickellbush, Inc. (“Brickellbush”), Manou Failly, and Youssef Vahabzadeh (collectively, the “Failly Defendants”) moved to dismiss for lack of jurisdiction, failure to plead fraud with specificity, and failure to state a claim. On July 19, 2001, in a twenty-page, published memorandum opinion, the District Court held that Plaintiffs had not sufficiently pled a pattern of racketeering activity. FCAM I, 150 F.Supp.2d at 633-36. The court analyzed the alleged predicate acts chronologically, first “examining] the sufficiency of the chronologic outliers, specifically the August 1995 conveyances and the transfers of funds to Sohrab in 1998 and 1999.” Id. at 631. As to the first “outlier” predicate act, Plaintiffs alleged that, in August 1995, Sohrab and an alter ego had transferred their interests in a partnership for inadequate consideration and no consideration, respectively, in contemplation of bankruptcy. Id. at 631-33. Plaintiffs claimed that the transfer constituted fraud on Sohrab’s part and, thus, was a RICO predicate. In the court’s view, however, “[n]ot only [was] there a dearth of facts supporting such an inference, but several allegations undermine[d] it. The" } ]

[ { "docid": "22713304", "title": "", "text": "trial rendered his conviction fundamentally unfair and deprived the sentencing determination of the reliability that the Eighth Amendment requires. It is helpful as an initial matter to place these remarks in context. Closing argument came at the end of several days of trial. Because of a state procedural rule petitioner’s counsel had the opportunity to present the initial summation as well as a rebuttal to the prosecutors’ closing arguments. The prosecutors’ comments must be evaluated in light of the defense argument that preceded it, which blamed the Polk County Sheriff’s Office for a lack of evidence, alluded to the death penalty, characterized the perpetrator of the crimes as an “animal,” and contained counsel’s personal opinion of the strength of the State’s evidence. The prosecutors then made their closing argument. That argument deserves the condemnation it has received from every court to review it, although no court has held that the argument rendered the trial unfair. Several comments attempted to place some of the blame for the crime on the Division of Corrections, because Darden was on weekend furlough from a prison sentence when the crime occurred. Some comments implied that the death penalty would be the only guarantee against a future similar act. Others incorporated the defense’s use of the word “animal.” Prosecutor McDaniel made several offensive comments reflecting an emotional reaction to the case. These comments undoubtedly were improper. But as both the District Court and the original panel of the Court of Appeals (whose opinion on this issue still stands) recognized, it “is not enough that the prosecutors’ remarks were undesirable or even universally condemned.” Darden v. Wainwright, 699 F. 2d, at 1036. The relevant question is whether the prosecutors’ comments “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristo-foro, 416 U. S. 637 (1974). Moreover, the appropriate standard of review for such a claim on writ of habeas corpus is “the narrow one of due process, and not the broad exercise of supervisory power.” Id., at 642. Under this standard of review, we agree with the" } ]

[ { "docid": "18358925", "title": "", "text": "Makowski, 291 F.3d 447, 451 (6th Cir.2002) (quoting Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir.1997)). The relevant question is whether the prosecutor’s remarks “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Id. (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). Post-AEDPA, this Court has adopted a two-step test to determine whether prose-cutorial misconduct violates a Defendant’s due process rights. First, we consider whether the prosecutor’s remarks were improper. Id. at 452. If we determine that the remarks were improper, then we must “apply the four-factor test set forth in United States v. Carroll, 26 F.3d 1380, 1385 (6th Cir.1994), to determine ‘whether the impropriety was flagrant’ and thus violated the defendant’s due process rights.” Id. (quoting United States v. Carter, 236 F.3d 777, 783 (6th Cir.2001)). The four factors to consider are: “(1) whether the conduct and remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2) whether the conduct or remarks were isolated or extensive; (3) whether the remarks were deliberately or accidentally made; (4) whether the evidence against the defendant was strong.” Id. We must first consider Defendant’s allegations of prosecutorial misconduct and determine whether the statements were improper before proceeding to an analysis under the four factors. The district court found that while some of the prosecutor’s remarks may have been “repugnant, they did not deny Spisak due process or inject any fundamental unfairness into the trial.” (J.A. at 238.) Overall, we agree. ■ A. Beverly Murphy as a Rebuttal Witness First of all, we do not believe that it was improper for the prosecution to call Murphy as a rebuttal witness, but even if it was, none of the testimony elicited from Murphy was at all prejudicial to Defendant. The prosecution called Murphy, over the objection of the defense, to rebut the testimony of Dr. Bertschinger. The district court ruled that Murphy’s testimony did not rebut Bertschinger’s testimony and that the “trial court erred when it permitted Murphy to testify,” but that Defendant was" }, { "docid": "14332202", "title": "", "text": "Supreme Court of New Jersey (with one justice dissenting) affirmed the conviction, holding that when “[a]ppraised against the background of the trial, the whole summation and the judge’s charge, the passages complained of did not vitiate the fairness of the trial.” The district court granted the writ of habeas corpus, concluding that, taken to gether, the prosecutorial comments about “all the Willie Lee Joneses of the world” deprived petitioner of his constitutionally guaranteed right to a fair, trial. The court further held that the reference to his lawyer impinged upon the defendant’s Sixth Amendment right to counsel. In cases of this nature, our review of the state court proceedings is narrow for “not every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a ‘failure to observe that fundamental fairness essential to the very concept of justice.’ ” Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974). If it is contended that the prosecutor’s remarks so prejudiced a specific right guaranteed by the Bill of Rights as to amount to a denial of that right, then the court takes special care to assure that no impermissible infringement has taken place. However, in other situations, the test is whether the prosecutor’s remarks so infected the trial with unfairness as to make the resulting conviction a denial of due process. Donnelly v. DeChristoforo, 416 U.S. at 643, 94 S.Ct. at 1868. It is essential to distinguish between ordinary trial error and that sort of egregious misconduct which amounts to a denial of constitutional due process. Thus, we must first determine whether petitioner’s Sixth Amendment right to counsel was violated by the prosecutorial comment. If so, we must then decide if it was harmless beyond a reasonable doubt. Finally, we must determine whether the prosecutor’s “Willie Lee Joneses” remarks “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. at 643, 94 S.Ct. at 1871. Improper influence on the testimony of a witness by counsel was an issue first injected" }, { "docid": "16082117", "title": "", "text": "thus concludes that admission of the mug shot rendered Petitioner’s trial fundamentally unfair and so prejudiced him as to constitute a violation of due process. Mr. Matthews is, thus, also entitled to habeas relief on this claim. H. Prosecutorial Misconduct Petitioner next claims that he is entitled to habeas relief because the prosecutor argued facts of flight not supported by the evidence during opening arguments. The United States Supreme Court has stated that prosecutors must “refrain from improper methods calculated to produce a wrongful conviction.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). To prevail on a claim of prosecutorial misconduct, a habeas petitioner must demonstrate that the prosecutor’s remarks “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). Factors to be considered in weighing the extent of a prosecutor’s misconduct are: the degree to which the remarks complained of have a tendency to mislead the jury and to prejudice the accused; whether they are isolated or extensive; whether they were deliberately or accidentally placed before the jury, and the strength of the competent proof to establish the guilt of the accused. Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir.1997), cert. denied, 522 U.S. 1001, 118 S.Ct. 572, 139 L.Ed.2d 411 (1997) (quoting Serra v. Michigan Dept. of Corrections, 4 F.3d 1348, 1355-56 (6th Cir.1993)). [T]o constitute the denial of a fair trial, prosecutorial misconduct must be ‘so pronounced and persistent that it permeates the entire atmosphere of the tri al,’ or ‘so gross as probably to prejudice the defendant.’ Id. (citations omitted). In this case, the prosecutor’s comments did not rise to the level of constitutionally impermissible misconduct. First, although the prosecutor never established that Petitioner went to Milwaukee, Wisconsin on the day of the murder nor established exactly when Petitioner left town following the murders, the prosecutor did establish that Petitioner was in Illinois on December 14, 1985, two days after the murders. Thus, the prosecutor’s comments on" }, { "docid": "22901752", "title": "", "text": "misconduct must have “ ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). We do not possess supervisory powers over state court trials. Cook v. Bordenkircher, 602 F.2d 117, 119 n. 6 (6th Cir.1979) (“it is the responsibility of the [state courts] to police their prosecutors; we have no such authority.”). Therefore, on habeas review, our standard of review is limited to “ ‘the narrow one of due process.’ ” Darden, 477 U.S. at 181, 106 S.Ct. 2464 (quoting Donnelly v. DeChristoforo, 416 U.S. at 642, 94 S.Ct. 1868). In making this determination, we must bear in mind that “ ‘the touchstone of due process analysis ... is the fairness of the trial, not the culpability of the prosecutor.’ ” Serra v. Michigan Dep’t of Corrections, 4 F.3d 1348, 1355 (6th Cir.1993) (quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982)); see Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir.) (quoting Serra, 4 F.3d at 1355); cert. denied, 522 U.S. 1001, 118 S.Ct. 572, 139 L.Ed.2d 411 (1997). Therefore, even if the prosecutor’s conduct was “undesirable or even universally condemned,” Darden, 477 U.S. at 181, 106 S.Ct. 2464 (quotation marks and citation omitted), it does not constitute a due process violation unless the conduct was ‘so egregious so as to render the entire trial fundamentally unfair.’ ” Pritchett, 117 F.3d at 964 (quoting Cook v. Bordenkircher, 602 F.2d 117, 119 (6th Cir.1979)); see Darden, 477 U.S. at 181, 106 S.Ct. 2464; Serra, 4 F.3d at 1355; Angel v. Overberg, 682 F.2d 605, 608 (6th Cir.1982) (en banc). Indeed, our case law demonstrates the “extreme nature of prosecutorial misconduct required for a federal court to issue the writ.” Angel, 682 F.2d at 609 (quoting Cook, 602 F.2d at 120). The factors to consider in determining whether this stringent standard has been met in a habeas case" }, { "docid": "23627967", "title": "", "text": "196 F.3d 1174, 1177-78 (10th Cir.1999). Thus, we give deference to the state court’s result, even when its reasoning was not expressly stated. See id. at 1177. Generally, a prosecutor’s improper remark will require reversal of a state conviction only if the remark sufficiently infected the trial, making it fundamentally unfair and, therefore, a denial of due process. See Donnelly v. DeChristoforo, 416 U.S. 637, 643, 645, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). Inquiry into fundamental fairness requires examination of the entire proceedings. See id. at 643, 94 S.Ct. 1868. It also requires a review of the strength of the evidence against the petitioner. See Fero v. Kerby, 39 F.3d 1462, 1474 (10th Cir.1994). Ultimately, this court considers the jury’s ability to judge the evidence fairly in light of the prosecutor’s conduct. See id. “[I]t is not enough that the prosecutor’s remarks were undesirable or even universally condemned.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quotation omitted). Counsel’s failure to object to many of the comments, while not dispositive, is relevant to a fundamental fairness assessment. See Trice v. Ward, 196 F.3d 1151, 1167 (10th Cir.1999), cert. denied, — U.S. —, 121 S.Ct. 93 (2000). If, however, the alleged prosecutorial misconduct denied the petitioner a specific constitutional right, a habeas claim may be established without requiring proof the entire trial was rendered fundamentally unfair. See Paxton v. Ward, 199 F.3d 1197, 1217 (10th Cir.1999). A. Jury Selection Citing only state law, Mr. Walker argues the prosecutor improperly stated three times during voir dire his personal opinion that Mr. Walker deserved the death penalty. As the Oklahoma Court of Criminal Appeals determined, these unobjected to comments did not render the trial fundamentally unfair. The prosecutor admitted he was not a neutral participant and he had the burden of proof. Also, he informed the prospective jurors they must reach a verdict based on the law and the evidence. B. First Stage Again citing only state law, Mr. Walker argues the prosecutor improperly questioned defense witnesses about his alleged propensity for violence. The Oklahoma Court" }, { "docid": "2124075", "title": "", "text": "could infer he went to Butler County because he wanted to choose his victim, someone who couldn’t find — wouldn’t be missed for quite some time. If there is some [big] mystery why he went to Butler County besides that, why didn’t he tell you that today in his unsworn statement? Prosecutorial misconduct can merit habeas relief only if the prosecutor’s remarks render the trial so unfair as to be a denial of due process. See Donnelly v. DeChristoforo, 416 U.S. 637, 643-45, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). “ ‘[T]he touchstone of due process analysis ... is the fairness of the trial, not the culpability of the prosecutor.’” Serra v. Mich. Dep’t of Corr., 4 F.3d 1348, 1355 (6th Cir.1993) (quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982)). In order to obtain relief on a claim of prosecutorial misconduct, a petitioner “must demonstrate that the prosecution’s conduct was both improper and so flagrant as to warrant reversal.” Bates v. Bell, 402 F.3d 635, 641 (6th Cir.2005). A prosecutor violates a defendant’s Fifth Amendment rights if he comments on the defendant’s refusal to testify. See Griffin v. California, 380 U.S. 609, 613-14, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Under Ohio law, a defendant may present an unsworn statement at sentencing without subjecting himself to cross-examination. Ohio Rev. Code § 2929.03(D)(1). If he does so, the prosecution may “remind[] the jury that the defendant’s statement was not made under oath, in contrast to the testimony of all other witnesses.” Durr v. Mitchell, 487 F.3d 423, 443 (6th Cir.2007) (internal quotation marks omitted); see also Bedford v. Collins, 567 F.3d 225, 236 (6th Cir.2009), cert. denied, - U.S. -, 130 S.Ct. 2344, 176 L.Ed.2d 577 (2010). However, the prosecution may not comment extensively on the matter. DePew v. Anderson, 311 F.3d 742, 750 (6th Cir.2002). If this court finds improper conduct, we consider four factors to determine whether the challenged conduct is flagrant: “(1) the likelihood that the remarks of the prosecutor tended to mislead the jury or prejudice the petitioner; (2) whether" }, { "docid": "23215188", "title": "", "text": "trial court’s exclusion of certain evidence of Chris’s violence. F. Prosecutorial Misconduct Mason argues that “[throughout the trial and penalty phases, the prosecutor engaged in egregious misconduct designed to prejudice Mason and to inflame the passions of the jury, thus depriving Mason of due process and a fair trial.” Petitioner’s Br. at 108. The relevant question in cases of alleged prosecutorial mis conduct is “whether the prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). “[T]he misconduct must be so pronounced and persistent that it permeates the entire atmosphere of the trial or so gross as probably to prejudice the defendant.” Simpson v. Jones, 238 F.3d 399, 409 (6th Cir.2000) (internal quotation marks and citation omitted). A claimant must establish that the challenged statement was both improper and so flagrant as to require reversal. Boyle v. Million, 201 F.3d 711, 717 (6th Cir.2000). We have previously identified four factors that are relevant in analyzing a claim of prosecutorial misconduct: In every case, we consider the degree to which the remarks complained of have a tendency to mislead the jury and to prejudice the accused; whether they are isolated or extensive, whether they were deliberately or accidentally placed before the jury[;] and the strength of the competent proof to establish the guilt of the accused. Hill v. Brigano, 199 F.3d 833, 847 (6th Cir.1999) (quotation omitted). We review a prosecutorial misconduct claim for harmless error. Id. We first note our previous holding “that Ohio’s contemporaneous objection rule constitutes an adequate and independent state ground that bars federal habeas review absent a showing of cause and prejudice.” Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir.2001). “Moreover, we view a state appellate court’s review for plain error as the enforcement of a procedural default.” Id. “In determining whether state courts have relied on a procedural rule to bar review of a claim," }, { "docid": "4860243", "title": "", "text": "case.” Id. at 407, 120 S.Ct. 1495. B. Prosecutorial Misconduct Smith argues that the prosecutor committed misconduct during the guilt phase of the trial. Specifically, Smith claims that the prosecutor argued during his closing statement that Smith lacked remorse and that the prosecutor badgered Smith and made inflammatory comments about the victim on cross-examination. In the evaluation of a claim for prosecutorial misconduct, it is not enough that the prosecutor’s comments were improper, but “[t]he relevant question is whether the prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)); accord Broom v. Mitchell, 441 F.3d 392, 412 (6th Cir.2006), cert. denied, 549 U.S. 1255, 127 S.Ct. 1376, 167 L.Ed.2d 165 (2007). “In order to satisfy the standard for prosecutorial misconduct, the conduct must be both improper and flagrant.” Broom, 441 F.3d at 412; accord Boyle v. Million, 201 F.3d 711, 717 (6th Cir.2000). We consider four factors in determining whether a prosecutor’s improper conduct is flagrant: (1) the likelihood that the remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2) whether the remarks were isolated or extensive; (3) whether the remarks were deliberately or accidentally made; and (4) the total strength of the evidence against the defendant. Broom, 441 F.3d at 412 (quoting Bates v. Bell, 402 F.3d 635, 641 (6th Cir.), cert. denied, 546 U.S. 865, 126 S.Ct. 163, 163 L.Ed.2d 150 (2005)); accord Boyle, 201 F.3d at 717. The Ohio Supreme Court rejected Smith’s prosecutorial-misconduct arguments, finding that neither instance of alleged misconduct was improper. As to the prosecutor’s remarks during closing arguments, the court found that “[t]he prosecutor’s reference to defendant’s lack of remorse may have been intended to question his credibility.” Smith, 684 N.E.2d at 689. We agree that this statement was not improper in the context of this case. On direct examination, Smith testified that he cried when he told" }, { "docid": "1044958", "title": "", "text": "‘so infected the trial with unfairness as to make the conviction a denial of due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). “Even if the prosecutor’s conduct was improper or even universally condemned, we can provide relief only if the statements were so flagrant as to render the entire trial fundamentally unfair.” Bowling v. Parker, 344 F.3d 487, 512 (6th Cir.2003). Reversal is required only if the prosecutor’s misconduct is “so pronounced and persistent that it permeates the entire atmosphere of the trial or so gross as probably to prejudice the defendant.” Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir.1997); see also Gall v. Parker, 231 F.3d 265, 311 (6th Cir.2000), overruled on other grounds sub nom Bowling, 344 F.3d at 501 n. 3. If a court does find a constitutional error in the sentencing phase, the court must then ask whether the constitutional error influenced the jury’s decision between life and death. The Supreme Court has advised that isolated statements of a prosecutor’s argument, like all closing arguments of counsel, are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. While these general observations in no way justify prosecutorial misconduct, they do suggest that a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations. Donnelly, 416 U.S. at 646-47, 94 S.Ct. 1868. This Court has further instructed courts to consider: the degree to which the remarks complained of have a tendency to mislead the jury and to prejudice the accused; whether they are isolated or extensive; whether they were deliberately or accidentally placed before the jury and the strength of the competent proof to establish the guilt of the accused. Angel v. Overberg, 682 F.2d 605, 608 (6th Cir.1982) (en banc). This Court has" }, { "docid": "4860242", "title": "", "text": "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). The Supreme Court has explained that subsection 2254(d)(1) contains two prongs, the “contrary to” and the “unreasonable application of’ clauses, each with an independent meaning. Terry Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A decision is contrary to clearly established federal law if either “the state court applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases,” id. at 405, 120 S.Ct. 1495, or “the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent,” id. at 406, 120 S.Ct. 1495. A decision is an unreasonable application of clearly established federal law, on the other hand, if “the state court identifies the correct governing legal rule from [the Supreme] Court’s cases but unreasonably applies it to the facts of the particular state prisoner’s case.” Id. at 407, 120 S.Ct. 1495. B. Prosecutorial Misconduct Smith argues that the prosecutor committed misconduct during the guilt phase of the trial. Specifically, Smith claims that the prosecutor argued during his closing statement that Smith lacked remorse and that the prosecutor badgered Smith and made inflammatory comments about the victim on cross-examination. In the evaluation of a claim for prosecutorial misconduct, it is not enough that the prosecutor’s comments were improper, but “[t]he relevant question is whether the prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)); accord Broom v. Mitchell, 441 F.3d 392, 412 (6th Cir.2006), cert. denied, 549 U.S. 1255, 127 S.Ct. 1376, 167 L.Ed.2d 165 (2007). “In order to satisfy the standard for prosecutorial misconduct, the conduct must be both improper and flagrant.” Broom, 441 F.3d at 412; accord Boyle" }, { "docid": "1316593", "title": "", "text": "today is to follow the instruction of the Court and make your decision accordingly. J.A. at 683-84 (Penalty Phase Hr’g Tr. at 2687-88). On direct appeal, the Ohio Supreme Court concluded that the prosecutor’s comments were improper, but ultimately rejected Goffs claim on the ground that there was no showing of prejudice: The prosecutor, however, did overstep the bounds of proper argument on one occasion, arguing that the jury must set the standards of behavior acceptable to society, and appealing to public sentiment. However, defense counsel immediately objected, and the jury was instructed to disregard the prosecutor’s inappropriate comments. The jury is presumed to follow the court’s instruction. Goff I, 694 N.E.2d at 926. The district court likewise rejected Goffs claim, Goff IV, 2006 WL 3590369, at *55-58, as do we. “In the evaluation of a claim for prosecutorial misconduct, it is not enough that the prosecutor’s comments were improper, but ‘[t]he relevant question is whether the prosecutors’ comments “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” ’ ” Smith, 567 F.3d at 255 (quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). In other words, “[i]n order to satisfy the standard for prosecutorial misconduct, the conduct must be both improper and flagrant.” Broom v. Mitchell, 441 F.3d 392, 412 (6th Cir.2006), cert. denied, 549 U.S. 1255, 127 S.Ct. 1376, 167 L.Ed.2d 165 (2007). To determine whether improper conduct is flagrant, we consider four factors: (1) the likelihood that the remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2) whether the remarks were isolated or extensive; (3) whether the remarks were deliberately or accidentally made; and (4) the total strength of the evidence against the defendant. Bates v. Bell, 402 F.3d 635, 641 (6th Cir.), cert. denied, 546 U.S. 865, 126 S.Ct. 163, 163 L.Ed.2d 150 (2005). In the instant case, it is clear that the remarks made by the prosecution were improper, but we" }, { "docid": "10823772", "title": "", "text": "did not constitute a violation of his constitutional rights. He contends that combined effect of four acts by the prosecutor constitute prosecutorial misconduct and a denial of his right to a fair trial under the Sixth Amendment. The four acts are as follows: (1) the prosecutor’s comments to the media prior to the trial; (2) the prosecutor’s impeachment of Cam-my Palmer; (3) the prosecutor’s statements in closing argument implying that the defendant was a liar; and (4) the prosecutor’s statements in closing argument commenting on the defendant’s failure to testify. Because none of the prosecutor’s actions rise to the level of prosecutorial misconduct we affirm the district court’s finding that the defendant is not entitled to relief on this claim. For the prosecutor’s misconduct to be found to violate defendant’s constitutional rights this court must determine that the prosecutor’s actions “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974). This Circuit in Angel v. Overberg, 682 F.2d 605, 608 (6th Cir.1982) (en banc), set forth the factors to be considered when analyzing a claim of prosecutorial misconduct. In every case, we consider the degree to which the remarks complained of have a tendency to mislead the jury and to prejudice the accused; whether they are isolated or extensive; whether they were deliberately or accidentally placed before the jury, and the strength of the competent proof to establish the guilt of the accused. On habeas, this court reviews a claim of prosecutorial misconduct for harmless error. See Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir.1997). We find that the prosecutor’s conduct does not constitute prosecutorial misconduct. The prosecutor’s comments to the press were the result of a miscommunication between the court, the defense counsel, and the prosecutor. In addition, they occurred prior to the empaneling of the jury and the voir dire of the jury included extensive questioning about pre-trial publicity. The prosecutor’s impeachment of Cammy Palmer was made necessary by Ms. Palmer’s testimony on the stand." }, { "docid": "14502081", "title": "", "text": "arguments C.IV and E.I, but not discussing appellant’s Section D, relating to prosecutorial misconduct). Moreover, petitioner raised this omission in a petition for rehearing as provided for by the Rules of the OMahoma Court of Criminal Appeals. Petitioner raised the prosecutorial misconduct claim at all possible junctures on direct appeal, and he offers evidence that OMahoma courts do review such claims for fundamental error—a review that necessarily includes review for federal constitutional error and is not independent, see Brecheen, 41 F.3d at 1353-54—even absent contemporaneous objection at trial. Accordingly, we cannot conclude that the court’s application of the contemporaneous objection rule in post-conviction proceedings was an adequate and independent instance of procedural bar. See Brecheen, 41 F.3d at 1354 & n. 10. Yet, we should note that while we conclude that there is no procedural bar to review of the remarks not objected to at trial, that failure is nevertheless relevant to our analysis of the fundamental fairness or unfairness of the entire trial under Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). We turn to the merits of petitioner’s claims of prosecutorial misconduct. Johnson contends that the allegedly improper remarks regarding forensic and psychiatric assistance violated a specific constitutional right to an adequate defense. Perforce, he argues, to establish a claim for habeas relief he need not show that the entire trial was rendered fundamentally unfair. See Mahorney v. Wattman, 917 F.2d 469, 472 (10th Cir.1990). As we have concluded that the denial of expert assistance did not infringe on a specific constitutional right, see infra Section III, we must review the allegedly improper conduct to determine whether it “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly, 416 U.S. at 643, 94 S.Ct. 1868. In making that determination, we consider all of the surrounding circumstances, including the strength of the State’s case. See Coleman v. Brown, 802 F.2d 1227, 1237 (10th Cir.1986). With respect to the prosecutor’s disparaging remarks about defense counsel, after careful review of the totality of circumstances of the trial, we" }, { "docid": "1170937", "title": "", "text": "defense counsel had not occurred, the result would have been different. B. Prosecutorial Misconduct The petitioner also claims that habeas corpus relief should be granted because of prosecutorial misconduct. In his closing argument, the prosecutor made several improper references to and comments about the petitioner. The prosecutor called the petitioner at various times a liar, a dog, and an animal. The prosecutor stated that it was “too bad” that the police officers had not broken Mr. Shepard’s skull. Tr.Tr. at 560. He said that Officer Korhonen could have killed the petitioner and would have been doing the taxpayers a favor by doing so. Id. at 558. The petitioner also argues that the prosecutor made improper attacks on the defense counsel by attacking defense counsel’s credibility during closing remarks. Petitioner also argues that the prosecutor improperly vouched for witnesses’ testimony based on personal opinion during his closing argument. In evaluating a claim of prosecutorial misconduct as a violation of the petitioner’s due process right to a fair trial, the inquiry is whether the prosecutor’s closing argument statements “ ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Darden v. Wainwright, — U.S. -, 106 S.Ct. 2464, 2472, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)). “[I]t ‘is not enough that the prosecutors’ remarks were undesirable or even universally condemned.’ ” Darden, 106 S.Ct. at 2472 (quoting Darden v. Wainwright, 699 F.2d 1031, 1036 (11th Cir.1983)). Rather, the Court in Darden evaluated the trial as a whole: 1) whether the prosecutors’ statements manipulated or misstated the evidence; 2) whether the statements implicated specific Bill of Rights provisions such as the right to counsel or the right to remain silent; 3) whether the improper statements were an “invited response” to the argument of defense counsel; 4) whether the trial court instructed the jury to disregard the improper statements; 5) ■ whether the defense had and used the opportunity for rebuttal to counter the prosecutors’ statements; and 6) the weight of the evidence" }, { "docid": "5536535", "title": "", "text": "implicate a federal constitutional right and is not subject to review in a habeas proceeding. See Schacks v. Tessmer, No. 00-1062, 2001 WL 523533, *6 (6th Cir. May 8, 2001) (unpublished) (refusing to review state court determination that second-degree murder conviction rendered bind-over sufficiency of the evidence challenge moot). Habeas relief is not warranted on this claim. E. Prosecutorial Misconduct/Admission of Alias Testimony Petitioner next asserts that he is entitled to habeas relief because the prosecutor erred by introducing evidence that Petitioner used an alias while living in Florida after fleeing Michigan. The United States Supreme Court has stated that prosecutors must “refrain from improper methods calculated to produce a wrongful conviction.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). To prevail on a claim of prosecutorial misconduct, a habeas petitioner must demonstrate that the prosecutor’s remarks “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). When addressing a claims of prosecutorial misconduct, the court must first determine whether the challenged statements were indeed improper. See United States v. Francis, 170 F.3d 546, 549 (6th Cir.1999). Upon a finding of such impropriety, the court must then “look to see if they were flagrant and warrant reversal.” Id. Flagrancy is determined by an examination of four factors: 1) whether the statements tended to mislead the jury or prejudice the accused; 2) whether the statements were isolated or among a series of improper statements; 3) whether the statements were deliberately or accidentally before the jury; and 4) the total strength of the evidence against the accused. See Boyle v. Million, 201 F.3d 711, 717 (6th Cir.2000) (citing Francis, 170 F.3d at 549-50); Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir.1997). “[T]o constitute the denial of a fair trial, prosecutorial misconduct must be ‘so pronounced and persistent that it permeates the entire atmosphere of the trial,’ or ‘so gross as probably to prejudice the defendant.’” Pritchett, 117 F.3d at 964 (citations omitted). In" }, { "docid": "3106084", "title": "", "text": "the petitioner’s witnesses as “last minute witnesses,” which, petitioner claims, implied personal knowledge of facts outside the record on the part of the prosecutor and suggested that defense counsel sought out these witnesses to bolster a sagging defense. Finally, the prosecutor accused defense witnesses of lying, allegedly implying they had done so at the behest of defense counsel. The proper legal standard we are to utilize in evaluating alleged misconduct by a state prosecutor is relatively clear. The prosecutor is ordinarily entitled to wide latitude in rebuttal argument and may fairly respond to arguments made by defense counsel. Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). Before habeas relief is granted, the prosecutor’s statements must be so egregious as to render the trial fundamentally unfair. Id. This determination is to be made by evaluating the totality of the circumstances surrounding each individual case. Hayton v. Egeler, 555 F.2d 599, 604 (6th Cir.), cert. denied, 434 U.S. 973, 98 S.Ct. 527, 54 L.Ed.2d 463 (1977). Our Court has identified the factors we are to consider in weighing the extent of prosecutorial misconduct in habeas cases. In every case, we consider the degree to which the remarks complained of have a tendency to mislead the jury and to prejudice the accused; whether they are isolated or extensive; whether they were deliberately or accidentally placed before the jury, and the strength of the competent proof to establish the guilt of the accused. United States v. Leon, 534 F.2d 667, 679 (6th Cir. 1976). However, even when reviewing prosecutorial misconduct on direct appeal, this Court has remarked: More commonly, however, the complained-of conduct will not rise to reversible error, notably if it is not flagrant, where proof of guilt is overwhelming, where counsel does not object and/or where the trial judge steps in and admonishes the jury [citations omitted]. Indeed, it is notable how often courts cite improper argument by a prosecutor and how seldom they reverse convictions because of it. United States v. Bess, 593 F.2d 749, 757 (6th Cir. 1979) (emphasis in original). Given this strict standard" }, { "docid": "1316594", "title": "", "text": "process.” ’ ” Smith, 567 F.3d at 255 (quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). In other words, “[i]n order to satisfy the standard for prosecutorial misconduct, the conduct must be both improper and flagrant.” Broom v. Mitchell, 441 F.3d 392, 412 (6th Cir.2006), cert. denied, 549 U.S. 1255, 127 S.Ct. 1376, 167 L.Ed.2d 165 (2007). To determine whether improper conduct is flagrant, we consider four factors: (1) the likelihood that the remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2) whether the remarks were isolated or extensive; (3) whether the remarks were deliberately or accidentally made; and (4) the total strength of the evidence against the defendant. Bates v. Bell, 402 F.3d 635, 641 (6th Cir.), cert. denied, 546 U.S. 865, 126 S.Ct. 163, 163 L.Ed.2d 150 (2005). In the instant case, it is clear that the remarks made by the prosecution were improper, but we do not believe that they were flagrant. Although the remarks were deliberately made and might have misled the jury absent a curative instruction, the trial court immediately gave a curative instruction, which we must presume the jury followed. Scott, 209 F.3d at 879 (holding that curative instructions are “presume[d] to have been effective unless there is an ‘overwhelming probability’ that they were ignored” (quoting Richardson v. Marsh, 481 U.S. 200, 208, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987))). Further, the remarks were isolated, and there was substantial evidence before the jury favoring a death sentence. Therefore, we conclude that the Ohio Supreme Court’s decision on this issue is not contrary to, or an unreasonable application of, federal law. 8. Ineffective Assistance of Trial Counsel As noted above, to demonstrate ineffective assistance of counsel, Goff must establish that his trial counsel was deficient and that this deficiency prejudiced Goff. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Prejudice is shown if Goff establishes “that there is a reasonable probability that, but for counsel’s unprofessional errors, the" }, { "docid": "17262422", "title": "", "text": "present and heard?” State R., Vol. VI, Resentencing Tr. at 26. Mr. Meers responded affirmatively that he was “aware [she was] present.” Id. (Test. of Mr. Meers). Mr. Littlejohn argues that this statement amounted to impermissible prosecutorial vouching. “Vouching,” or “an assurance by the prosecuting attorney of the credibility of a government witness through personal knowledge or by other information outside of the testimony before the jury,” amounts to improper prosecutorial conduct. Lam v. Kelchner, 304 F.3d 256, 271 (3d Cir.2002); see Matthews, 577 F.3d at 1187; Douglas v. Workman, 560 F.3d 1156, 1177-79 (10th Cir.2009). Generally, there are two ways in which prosecutorial misconduct, like vouching, can result in constitutional error. See DeRosa, 679 F.3d at 1222. “First, [it] can prejudice a specific right ... as to amount to a denial of that right.” Id. (quoting Matthews, 577 F.3d at 1186) (internal quotation marks omitted). Additionally, absent infringement of a specific constitutional right, a prosecutor’s misconduct may in some instances render a habeas petitioner’s trial “so fundamentally unfair as to deny him due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); see Wilson, 536 F.3d at 1117 (“Unless prosecutorial misconduct implicates a specific constitutional right, a prosecutor’s improper remarks require reversal of a state conviction only if the remarks so infected the trial with unfairness as to make the resulting conviction a denial of due process.” (quoting Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir.2002) (per curiam)) (internal quotation marks omitted)); see also Matthews, 132 S.Ct. at 2153-54; Romano v. Oklahoma, 512 U.S. 1, 12-13, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994). In determining whether a trial is rendered “fundamentally unfair” in light of the conduct of a prosecutor, we examine the entire proceeding, “including the strength of the evidence against the petitioner, both as to guilt at that stage of the trial and as to moral culpability at the sentencing phase as well as any cautionary steps—such as instructions to the jury—offered by the court to counteract improper remarks.” Wilson, 536 F.3d at 1117 (quoting Bland, 459 F.3d at 1024)." }, { "docid": "1044957", "title": "", "text": "and (k) by arguing them on direct appeal. Petitioner raised the remainder of his subclaims for the first time on collateral attack in state court. On collateral review, the Ohio Court of Appeals held all of Petitioner’s claims based on prosecutorial misconduct barred by res judicata. Lundgren, No. 97-L-110, 1998 WL 964592, 1998 Ohio App. LEXIS 6164, at *13. For procedural default in this Court, however, only those claims which Petitioner failed to bring on direct review and which were subsequently barred are deemed procedurally defaulted. Therefore, subclaims (i) and (k) are pre served for review, while the remaining subclaims are procedurally defaulted. Here, Petitioner has not argued that his counsel’s performance on direct appeal was ineffective. Nor has Petitioner presented any cause for his appellate counsel’s failure to bring his prosecutorial misconduct subclaims (a), (b), (c), (d), (e), (f), (g), (h), and (j) on direct appeal. Therefore, Petitioner has failed to overcome his procedural default on these subclaims. 2. Prosecutorial Misconduct Legal Standard On habeas review, “the relevant question is whether the prosecutor’s comments ‘so infected the trial with unfairness as to make the conviction a denial of due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). “Even if the prosecutor’s conduct was improper or even universally condemned, we can provide relief only if the statements were so flagrant as to render the entire trial fundamentally unfair.” Bowling v. Parker, 344 F.3d 487, 512 (6th Cir.2003). Reversal is required only if the prosecutor’s misconduct is “so pronounced and persistent that it permeates the entire atmosphere of the trial or so gross as probably to prejudice the defendant.” Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir.1997); see also Gall v. Parker, 231 F.3d 265, 311 (6th Cir.2000), overruled on other grounds sub nom Bowling, 344 F.3d at 501 n. 3. If a court does find a constitutional error in the sentencing phase, the court must then ask whether the constitutional error influenced the jury’s decision between" }, { "docid": "22901751", "title": "", "text": "See Marshall v. Lon-berger, 459 U.S. 422, 438 n. 6, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983) (“[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state evidentiary rules.”). Petitioner’s final claim is that his appellate counsel were constitutionally ineffective for failing to argue on direct appeal that Petitioner was denied a fair trial because the prosecution presented testimony of a “jailhouse informant:” This claim has no merit. Having rejected each of the claims of ineffective assistance of appellate counsel presented above, we now consider in Part YII Petitioner’s claims of prosecutorial misconduct during his trial. YII. Prosecutorial Misconduct Claims Petitioner contends that his appellate counsel were ineffective for fail ing to raise certain claims of prosecutorial misconduct. Petitioner alleges that various instances of unconstitutional prosecu-torial misconduct occurred during the course of his trial and that they warrant a reversal of his longstanding conviction and death sentence. Petitioner’s burden on habeas review is quite a substantial one. For relief to be granted, the misconduct must have “ ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). We do not possess supervisory powers over state court trials. Cook v. Bordenkircher, 602 F.2d 117, 119 n. 6 (6th Cir.1979) (“it is the responsibility of the [state courts] to police their prosecutors; we have no such authority.”). Therefore, on habeas review, our standard of review is limited to “ ‘the narrow one of due process.’ ” Darden, 477 U.S. at 181, 106 S.Ct. 2464 (quoting Donnelly v. DeChristoforo, 416 U.S. at 642, 94 S.Ct. 1868). In making this determination, we must bear in mind that “ ‘the touchstone of due process analysis ... is the fairness of the trial, not the culpability of the prosecutor.’ ” Serra v. Michigan Dep’t of Corrections, 4 F.3d 1348, 1355 (6th Cir.1993) (quoting Smith v. Phillips, 455" } ]

[ { "docid": "17084802", "title": "", "text": "Administrative Code Chapter 3745-33. The Ohio Act is not comparable to the federal Clean Water Act because the Ohio Act lacks the public participation safeguards present in 1319(g). Section 1319(g) contains several provisions to safeguard the public’s right to participate in the administrative action process. Section 1319(g)(4) specifies that: 1) the public must be given notice of a proposed order and must be provided a “reasonable opportunity to comment” on the order before it is finalized; and 2) any person who provides such comment must be given individual notice of any subsequent hearing pertaining to that penalty; and 3) if no such hearing is scheduled, any such person may petition the agency to hold a hearing. The agency must consider the evidence presented by the petitioner to set aside the order or hold the hearing, and if the agency decides not to hold a hearing, it must publish its reasons; and 4) any person who comments on a penalty order has the right to judicial review of the penalty assessed. These requirements are mandatory; they are not permissive. State laws must contain safeguards comparable to those of § 1319(g) if state agency orders are to preclude citizen suits. Atlantic States Legal Foundation v. Universal Tool and Stamping Co., 735 F.Supp. 1404, 1415 (N.D.Ind.1990). These safeguards must be mandatory, rather than permissive, if state law is to be considered comparable to § 1319(g). Id. at 1416. (emphasis added). As evidenced by the detailed requirements of § 1319(g)(4) set forth above, Congress was careful to limit preclusion of citizen enforcement actions only in those situations where the affected public had ample opportunity to participate in the process by which the administrative action was taken. Thus, the state law safeguards must be examined carefully to determine whether they are comparable to those provided by § 1319(g)(4). Ohio law does not provide safeguards comparable to § 1319(g)(4). Although Ohio law sets out circumstances under which an agency may decide to provide for notice, comment and hearings, it also allows the OEPA the discretion to avoid such public participation, as it did in this case." } ]

[ { "docid": "3090502", "title": "", "text": "procedures is that although the state statute authorizes DSL to conduct hearings and receive public input, it does not require public notice and opportunity for comment on a proposed enforcement action. Mandatory public notice and participation rights have been held to be an indispensable element in determining “comparability.” See Public Interest Research Group v. GAF Corp., 770 F.Supp. 943 (D.N.J.1991) [state law not comparable when it does not provide the public with notice and an opportunity to participate in the assessment of civil administrative fines and penalties]; Atlantic States Legal Foundation v. Universal Tool, 735 F.Supp. 1404 (N.D.Ind.1990) [state law not comparable within meaning of section 1319(g) when it does not require public notice of matters concluded by consent decree]. In Connecticut Coastal Fishermen v. Remington Arms, 111 F.Supp. 173 (D.Conn.1991), the court held a Connecticut state statute comparable to the CWA because the state agency was required to provide a public hearing on request and submit to judicial review. However, mandatory public notice is not necessarily the sine qua non of comparability. In North and South Rivers Watershed Ass’n v. Town of Scituate, 755 F.Supp. 484 (D.Mass.1991), the Massachusetts statute at issue did not provide for prior public notice of enforcement orders. However, the court noted that such orders were public documents and that any individual could intervene in any subsequent adjudicatory proceeding brought to assess a civil penalty upon a showing of good cause. The court concluded that the state law was comparable because the overall regulatory scheme adequately protected the public interest in enforcement actions. A district court within the Ninth Circuit has also rejected the argument that public notice and participation rights are essential to a finding of comparability. The plaintiff argues that the state and federal law are not comparable because only the federal law requires public notice of enforcement activity and an opportunity for the public to participate in enforcement proceedings. The court agrees that the absence of public notice and participation are significant omissions from the state procedures. Nevertheless, Congress only required that the state law be “comparable,” not “identical,” to the federal" }, { "docid": "15027216", "title": "", "text": "that the law under which the DEP proceeded was not comparable to § 1319(g). The court held that the relevant comparison under the Clean Water Act was to the overall state regulatory scheme rather than to individual sections of state law. The proper method for determining whether the DEP issued the Order under a comparable state law is not to parse the statute to identify which of its many powers the DEP invoked at a particular time. Rather, it is enough that the Massachusetts statutory scheme contains penalty assessment provisions equivalent to those in the Federal Act. Although the DEP has not yet chosen to employ these penalty assessment provisions in the instant Order, that election does not change the fact that the statutory scheme under which the DEP acts is comparable. Id. at 486. The court also examined the substantive meaning of “comparable.” “A state law that is ‘comparable’ within the meaning of the Federal Act ‘must include provisions as to public notice and participation, penalty assessment, judicial review, and other matters comparable to those in § 1319(g).’ ” Id. at 485-86, quoting Atlantic States Legal Foundation v. Universal Tool & Stamping, 735 F.Supp. 1404, 1415 (N.D.Ind.1990). The court decided that although the Massachusetts statute does not provide for prior public notice of a penalty order, the overall regulatory scheme is comparable to § 1319(g) because it affords significant citizen participation. The court noted that an individual may intervene in subsequent proceedings to assess the civil penalty. Also, under Massachusetts law, ten or more individuals may intervene in any adjudicatory proceeding alleging damage to the environment. Thus, because the state law under which the agency was exercising its enforcement powers is comparable to § 1319(g) of the Clean Water Act, plaintiff’s claim was barred. Atlantic States Legal Foundation v. Universal Tool & Stamping, supra, describes other factors to be included in the comparability analysis. The court determined that in order to be “comparable” to the administrative penalty section of the Clean Water Act, state statutes must include the right to a public hearing on the proposed penalties, a list" }, { "docid": "14297920", "title": "", "text": "at least 30 days for public comment on any proposed settlement of a State enforcement action. Id. (emphasis added). As the regulation makes clear, before the EPA can delegate to a state the authority to enforce the CWA, the state must provide public participation in one of two ways: (1) it may provide for intervention as of right for aggrieved persons; or (2) it may provide assurances of public participation, including a thirty-day notice and comment period. That the federal regulation is phrased in the disjunctive is critical to our analysis. Despite the fact that Oklahoma does not provide for the sort of notice and comment period found in 40 C.F.R. §§ 22.45(b)(2) or 123.27(d)(2)(iii), its public participation provisions are still deemed sufficient to permit enforcement of the CWA by virtue of a statute providing intervention for aggrieved persons: Any person having any interest connected with the geographic area or waters or water system affected, including but not limited to any aesthetic, recreational, health, environmental, pecuniary or property interest, which interest is or may be adversely affected, shall have the right to intervene as a party in any administrative proceeding before the Department, or in any civil proceeding, relating to violations of the Oklahoma Pollutant Discharge Elimination System Act or rules, permits or orders issued hereunder. Okla. Stat. Ann. tit. 27A § 2-6-206(B). Oklahoma's public-participation provisions are comparable enough to permit a delegation of CWA enforcement authority, and we conclude they should also be deemed comparable for the purposes of imposing the jurisdictional bar under 33 U.S.C. § 1319(g)(6)(A)(ii). Accord Ark. Wildlife Fed’n v. ICI Americas, Inc., 842 F.Supp. 1140, 1146-47 (E.D.Ark.1993), aff'd, 29 F.3d 376 (8th Cir.1994) (holding that Arkansas law that provided intervention as of right to anyone with an interest in state enforcement proceedings provided for “public participation” comparable to that afforded under 33 U.S.C. § 1319(g)(4), “especially in view of 40 C.F.R. § 123.27(d)”). Accordingly, we conclude that all three categories of state provisions — penalty assessment, public participation, and judicial review-are roughly comparable to the corresponding class of federal provisions outlined in 33 U.S.C. 1319(g)." }, { "docid": "14297921", "title": "", "text": "adversely affected, shall have the right to intervene as a party in any administrative proceeding before the Department, or in any civil proceeding, relating to violations of the Oklahoma Pollutant Discharge Elimination System Act or rules, permits or orders issued hereunder. Okla. Stat. Ann. tit. 27A § 2-6-206(B). Oklahoma's public-participation provisions are comparable enough to permit a delegation of CWA enforcement authority, and we conclude they should also be deemed comparable for the purposes of imposing the jurisdictional bar under 33 U.S.C. § 1319(g)(6)(A)(ii). Accord Ark. Wildlife Fed’n v. ICI Americas, Inc., 842 F.Supp. 1140, 1146-47 (E.D.Ark.1993), aff'd, 29 F.3d 376 (8th Cir.1994) (holding that Arkansas law that provided intervention as of right to anyone with an interest in state enforcement proceedings provided for “public participation” comparable to that afforded under 33 U.S.C. § 1319(g)(4), “especially in view of 40 C.F.R. § 123.27(d)”). Accordingly, we conclude that all three categories of state provisions — penalty assessment, public participation, and judicial review-are roughly comparable to the corresponding class of federal provisions outlined in 33 U.S.C. 1319(g). IY. Scope of 33 U.S.C. § 1319(g)(6)(A)(ii) Having determined that Oklahoma law is comparable to the CWA for purposes of imposing the jurisdictional bar contained in 33 U.S.C. § 1319(g)(6)(A)(ii), we now decide which claims for relief are barred by the statute. Specifically, we must determine if the jurisdictional bar applies only to the civil penalties Plaintiffs seek, or whether the bar also extends to the equitable relief sought. In its order below, the district court determined that the provisions of 33 U.S.C. § 1319 operated only to bar civil-penalty relief. Plaintiffs’ claims for injunc-tive and declaratory relief, it held, were not barred by the statute. Despite the fact that two other circuit courts have considered and rejected the district court’s view, our reading of the statutory language and relevant precedent persuades us that the district court’s conclusion is correct. A. Statutory language The citizen suit provision of the Clean Water Act is found at 33 U.S.C. § 1365 and states in relevant part: (a) Authorization; jurisdiction Except as provided in ... section 1319(g)(6) of" }, { "docid": "21393014", "title": "", "text": "federal EPA nor the TDEC has initiated an action in any court in order to alleviate the discharge of waste into Oliver Creek. The enforcement actions taken by the TDEC against the city prior to the filing of this lawsuit amount simply to an exercise by the TDEC of its power as a state administrative agency charged by the state legislature to regulate water quality. While the term “court” may be susceptible to a number of interpretations, administrative proceedings involving the state’s Water Quality Control Board or the TDEC in seeking to enforce the TWQCA against a suspected polluter unquestionably are not actions taken in court as contemplated by Congress when it enacted § 1365(b). See Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57 (2d Cir.1985) (holding that an administrative board is not the equivalent of a “court” as defined by Congress in the Clean Water Act; rather, a “court” is a state or federal court, and nothing else). C. S3 U.S.C. § 1319 We must now determine, as required by § 1365(a), whether 33 U.S.C. § 1319(g)(6) bars plaintiffs’ action. Section 1319(g)(6)(A) provides, in relevant part, that [A]ny violation ... (n) with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection ... shall not be the subject of a civil penalty action under subsection (d) of this section or section 1321(b) of this title or section 1365 of this title. 33 U.S.C. § 1319(g)(6)(A). Thus, once a state has commenced and is diligently prosecuting an action under a state law that is comparable to § 1319(g), a citizen suit is barred. Id.; see also Knee Deep Cattle Co. v. Bindana Inv. Co., 94 F.3d 514, 516 (9th Cir.1996); Arkansas Wildlife Fed’n v. ICI Americas, Inc., 29 F.3d 376, 379-80 (8th Cir.1994). The district court declined to address the effect of § 1319(g)(6) because the city had not relied upon it and because the court concluded that the motion could be decided based upon the restriction contained in § 1365(b). Having concluded that the district" }, { "docid": "21569521", "title": "", "text": "Court for the Northern District of Ohio held that Ohio’s state laws were not comparable to the CWA, for purposes of applying 33 U.S.C. § 1319(g)(6)(A)(ii), because the state law lacked mandatory procedures for public participation prior to the imposition of a civil penalty. In Vygen, the district court held “since Ohio law has no mandatory public notice requirement, nor a requirement of public notice and opportunity to be heard prior to the issuance of a civil penalty, Ohio’s provisions are not comparable to § 1319(g), and the plaintiffs’ claim is not barred by Ohio’s administrative orders.” 803 F.Supp. at 102; see also Atlantic States Legal Found. v. Universal Tool & Stamping Co., 735 F.Supp. 1404, 1415-16 (N.D.Ind.1990). In response, ICI argues that the term “comparable” means that the state law need only be sufficiently similar to the federal law, not identical. ICI argues that Arkansas law is sufficiently similar because it adequately provides a meaningful opportunity for public participation in the enforcement process. ICI notes that copies of permits, permit applications, and related documentation (e.g., consent orders) are publicly available, Ark. Code Ann. § 8-4-207(6)(A), and that anyone may submit comments, request an adjudicatory hearing, and be made a party to the relevant proceedings. ADPC & E Reg. No. 8, Part VII, § 1. The regulations also provide that any person who either has a statutory right to intervene or has an interest that may be adversely affected by the outcome of the proceeding is entitled to intervene at any stage of the enforcement proceeding by filing a timely petition. ADPC & E Reg. No. 8, Part VII, § 5. ICI contends that by providing these rights and procedures, Arkansas law satisfies the comparability requirement. In Scituate, the appellants claimed that the Massachusetts Clean Waters Act, as applied in that case, was not comparable to the federal CWA. The First Circuit rejected that argument stating that “[t]he focus of the statutory bar to citizen’s suits is not on state statutory construction, but on whether corrective action already taken and diligently pursued by the government seeks to remedy the same" }, { "docid": "15027213", "title": "", "text": "potentially intrusive. We cannot agree that Congress intended such a result.” Id. at 61, 108 S.Ct. at 383. Clearly Gwaltney cannot be read to provide unqualified support for plaintiffs wishing to bring Clean Water Act suits where a state agency has commenced enforcement proceedings against an alleged violator. B. Effect of 1987 Amendment on Citizen Suit Provision In February of 1987, Congress passed an amendment to the Clean Water Act which barred citizen suits where “a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection.” Section 309(g)(6), 33 U.S.C. § 1319(g)(6)(A)(ii). The subsection authorizes the EPA to assess administrative penalties for Clean Water Act violations. Plaintiff contends that this amendment creates a narrow exception to Consolidated Rail for cases in which the state agency is seeking civil penalties or has issued a final order not subject to judicial review. Plaintiff argues that since DEP has not assessed civil penalties against defendant, § 1319(g) does not apply and its suit is not barred. Since plaintiff’s suit was brought less than three months after the 1987 amendment was passed, plaintiff could cite no authority for its narrow reading of the statute. To date, no court in the Second Circuit appears to have construed the language at issue. However, after examining the logic of recent cases in other circuits addressing this question, this court holds that plaintiff’s reading is faulty and that 33 U.S.C. § 1319(g)(6) bars citizen suits where a state agency conducting enforcement proceedings against the defendant has authority to assess civil penalties, regardless of whether the agency has actually assessed such penalties. In Atlantic States Legal Foundation, Inc. v. Tyson Foods, Inc., 682 F.Supp. 1186 (N.D.Ala.1988), reversed on other grounds, 897 F.2d 1128 (11th Cir.1990), the court held that an Alabama law which provides for the imposition of civil penalties by the Alabama Department of Environmental Management (DEM) is a law comparable to § 1319(g). The court reasoned that Congress had amended the Clean Water Act in part to eliminate federal jurisdiction in cases where state agencies had initiated enforcement proceedings: The" }, { "docid": "3090501", "title": "", "text": "enforcement action. Any person who comments can request a public hearing. Requests for hearings are not granted automatically; a hearing is required only “if the evidence submitted [in support of the request for a hearing] ... is material and was not considered in the issuance of the [civil penalty order]____” 33 U.S.C. § 1319(g)(4)(C). The procedures of DSL for abatement of an illegal fill and assessment of civil penalties is similar to the federal process. The statute provides for notice and an opportunity for the penalized party to have a hearing. ORS 196.860(1)(e). Interested parties other than the penalized party may participate at the hearing. ORS 196.860(1)(e). Even if a hearing is not held at the request of the violator, the director of DSL has the authority to hold a public hearing and accept public comment regarding the violation and proposed remedy. ORS 196.860(1)(a) and (e). Any person “adversely effected or aggrieved” by a DSL order is entitled to judicial review of that order. ORS 183.480. The only significant difference between state procedures and federal procedures is that although the state statute authorizes DSL to conduct hearings and receive public input, it does not require public notice and opportunity for comment on a proposed enforcement action. Mandatory public notice and participation rights have been held to be an indispensable element in determining “comparability.” See Public Interest Research Group v. GAF Corp., 770 F.Supp. 943 (D.N.J.1991) [state law not comparable when it does not provide the public with notice and an opportunity to participate in the assessment of civil administrative fines and penalties]; Atlantic States Legal Foundation v. Universal Tool, 735 F.Supp. 1404 (N.D.Ind.1990) [state law not comparable within meaning of section 1319(g) when it does not require public notice of matters concluded by consent decree]. In Connecticut Coastal Fishermen v. Remington Arms, 111 F.Supp. 173 (D.Conn.1991), the court held a Connecticut state statute comparable to the CWA because the state agency was required to provide a public hearing on request and submit to judicial review. However, mandatory public notice is not necessarily the sine qua non of comparability. In North" }, { "docid": "15027217", "title": "", "text": "those in § 1319(g).’ ” Id. at 485-86, quoting Atlantic States Legal Foundation v. Universal Tool & Stamping, 735 F.Supp. 1404, 1415 (N.D.Ind.1990). The court decided that although the Massachusetts statute does not provide for prior public notice of a penalty order, the overall regulatory scheme is comparable to § 1319(g) because it affords significant citizen participation. The court noted that an individual may intervene in subsequent proceedings to assess the civil penalty. Also, under Massachusetts law, ten or more individuals may intervene in any adjudicatory proceeding alleging damage to the environment. Thus, because the state law under which the agency was exercising its enforcement powers is comparable to § 1319(g) of the Clean Water Act, plaintiff’s claim was barred. Atlantic States Legal Foundation v. Universal Tool & Stamping, supra, describes other factors to be included in the comparability analysis. The court determined that in order to be “comparable” to the administrative penalty section of the Clean Water Act, state statutes must include the right to a public hearing on the proposed penalties, a list of penalty assessment factors analogous to the ones found in the federal statute, and standards for obtaining judicial review of administrative decisions. Although the Universal Tool court held that the Indiana statutes did not meet this comparability standard, Connecticut’s laws include these factors and are thus comparable to § 1319(g). Although none of these cases are binding upon this court, the logic of their arguments is persuasive. As defendant correctly notes, § 1319(g) grants a broad array of enforcement powers to the Administrator. He may issue administrative orders to require compliance or to assess penalties for current or past transgressions. He may also commence criminal prosecution or civil actions for injunctive relief or penalties. The defendant must be notified and allowed to request a public hearing before the assessment of penalties through administrative order. Any such order is subject to judicial review, and the agency must consider the specific circumstances of the case in making its penalty determination. These enforcement powers and procedural safeguards are similar to those provided by Connecticut law. Connecticut authorizes the" }, { "docid": "16238314", "title": "", "text": "penalty provision and that a state’s decision not to utilize the comparable state law penalty provision in any particular case does not negate the “comparability” of the state action. Id.; accord, Arkansas Wildlife Federation v. ICI Americas, Inc., 29 F.3d 376, 382-383 (8th Cir.1994). The Scituate Court reasoned: alty provisions does not alter the comparability of the State Act’s statutory scheme the scheme found in the Federal Act. While the specific statutory section under which the State issued its Order does not, itself, contain a penalty provision, another section of the same statute does contain penalty provisions. These two coordinate parts are cogs in the same statutory scheme implemented by the State for the protection of its waterways. Scituate, 949 F.2d at 556, (internal citations omitted). Thus, “[i]t is enough that the [state] statutory scheme ... contains penalty assessment provisions comparable to the Federal Act, that the State is authorized to assess those penalties, and that the overall scheme of the two acts is aimed at correcting the same violations, thereby achieving the same goals.” Id. Furthermore, according to the Scituate Court, “[s]o long as the provisions in the State Act adequately safeguard the substantive interests of citizens in enforcement actions, the rights of notice and public participation found in the State Act are satisfactorily comparable to those found in the Federal Act.” Id. In Washington Public Interest Research Group v. Pendleton Woolen Mills this Court interpreted the terms of 33 U.S.C. § 1319(g)(6)(A)(i). 11 F.3d 883 (9th Cir.1993). The Court noted that § 1319(g) deals only with administrative penalty actions. Id. at 885. The Court then concluded that when determining whether the EPA was “diligently prosecuting an action under this subsection,” the phrase “under this subsection” could mean only that the EPA was prosecuting an administrative penalty action. Id. at 886. The § 1319(g)(6)(A)(i) bar to citizen suits, therefore, was not implicated “in the face of an administrative compliance order.” Id. The Court specifically noted that it was not persuaded by the reasoning underlying the Scituate Court’s interpretation of § 1319(g)(6)(A)(ii) which was grounded in that court’s concern that" }, { "docid": "16238311", "title": "", "text": "factors to be considered in setting a penalty. Thus, asserts CBE, by making a payment outside the context of § 13385, UNOCAL avoided a significant level of scrutiny as to the nature and amount of a penalty. For example, the United States, as amicus curiae, notes that there was no formal scrutiny of the economic benefits to UNOCAL of non-compliance and thus no assurance that UNOCAL has fully disgorged the benefit it receives from violating effluent standards. CBE also notes that while payment of an administrative penalty must be made within 30 days of being imposed, California Water Code § 13323(d), UNOCAL was not required to make half of its payment until a year after the settlement was entered into. The Court determines that the fairest characterization of the payment at issue is that it was, indeed, a settlement made to avoid an enforcement action by the Regional Board. Accordingly, because UNOCAL has not paid a “penalty,” the § 1319(g)(6)(A)(iii) bar to citizen suits does not apply. This conclusion that § 1319(g) (6)(A) (iii) is not implicated is buttressed by the Court’s interpretation of the term “comparable state law,” discussed below. b. “comparable state law” Having determined that the payment at issue was not a “penalty,” the district court also concluded that the payment was not “assessed under this subsection, or such comparable State law” within the meaning of § 1319(g)(6)(A)(iii). It is undisputed that the penalty provision in § 13385 of the California Water Code is comparable to the federal Clean Water Act penalty provision of 33 U.S.C. § 1319. It is also not disputed that the payment at issue in this case was not levied pursuant to California Water Code § 13385. The key issue, therefore, is whether a penalty assessed not in accordance with § 13385 but, instead, under the aegis of a related provision of the California statutory scheme is “assessed under this subsection, or such comparable State law.” UNOCAL argues, as it did in the district court, that although the CDO states that it was issued under the authority of California Water Code § 13301," }, { "docid": "18237774", "title": "", "text": "at 1115. Because the state Water Quality Control Division in that case had only issued an administrative compliance order to the defendant and had not sought civil penalties, the court found that section 1319(g)(6)(A)(ii) did not apply. Id. RRI’s arguments to the contrary are not persuasive. Although RRI argues that “Courts have uniformly held that filing of an administrative consent order qualifies as the sort of administrative action that bars a citizen suit,” see Def. Brief, p. 25 (emphasis added), it cites only one case to support that position. Moreover, in that case, Arkansas Wildlife Federation v. ICI Americas, Inc., 29 F.3d 376 (8th Cir.1994) (“Arkansas Wildlife Federation ”), the Consent Administrative Order at issue imposed administrative penalties. Id. at 378. Because administrative penalties had already been assessed, the citizen suit would have subjected the defendant to duplicative civil penalties, unlike in this case. In addition, the agreement in Arkansas Wildlife Federation was entered into only after the state informed the defendant that it was subject to enforcement action under state law having unsuccessfully issued noncompliance notices to the defendant for over two years. Id. at 877-78. The state, therefore, had taken steps toward assessing civil penalties. Here, in contrast, the COA was not entered into because the PADEP was exercising, or even threatening to exercise, its enforcement powers under state law. Rather, the COA was entered into in order to resolve the administrative appeal filed by RRI. See Def. Exh. 12: The COA. Hence, the PADEP was not exercising its enforcement powers under a comparable state law or pursuing administrative penalties thereby rendering section 1319(g)(6)(A) inapplicable. See Tobyhanna Conservation Association v. Country Place Waste Treatment Co., 734 F.Supp. 667, 670 (M.D.Pa.1989) (Rejecting defendant’s argument that citizen suit was precluded under section 1319(g)(6)(A)(ii) where, although an Administrative Conference had been set, no order had been issued assessing a civil penalty). RRI also makes much of the fact that the language in subsection (ii), differs from that in (i) and (iii) in that it requires only that the state be pursuing an action under state law that is “comparable to this" }, { "docid": "16238313", "title": "", "text": "because § 13301 is within the same statutory scheme as § 13385 a penalty assessed under the former provision is assessed under a “comparable State law” within the meaning of 33 U.S.C. § 1319(g)(6)(A)(iii). The district court held that the “comparability assessment is conducted by examining the state statutory enforcement provision involved,” here California Water Code § 13301, and “not the state statutory enforcement scheme as a whole”’ Because California Water Code § 13301 is not comparable to the federal penalty provision in 33 U.S.C. § 1319(g), reasoned the district court, a penalty assessed under § 13301 does not implicate the § 1319(g) (6) (A) (iii) bar on citizen suits. In reaching this conclusion the district court specifically rejected the reasoning of the First Circuit in North and South Rivers Watershed Ass’n v. Scituate interpreting the term “comparable” in § 1319(g)(6)(A)(ii). 949 F.2d 552, 555-556 (1st Cir.1991). In Scituate the First Circuit held that the comparability requirement of § 1319(g)(6)(A)(ii) is met where the state “statutory scheme” contains a penalty provision comparable to the federal penalty provision and that a state’s decision not to utilize the comparable state law penalty provision in any particular case does not negate the “comparability” of the state action. Id.; accord, Arkansas Wildlife Federation v. ICI Americas, Inc., 29 F.3d 376, 382-383 (8th Cir.1994). The Scituate Court reasoned: alty provisions does not alter the comparability of the State Act’s statutory scheme the scheme found in the Federal Act. While the specific statutory section under which the State issued its Order does not, itself, contain a penalty provision, another section of the same statute does contain penalty provisions. These two coordinate parts are cogs in the same statutory scheme implemented by the State for the protection of its waterways. Scituate, 949 F.2d at 556, (internal citations omitted). Thus, “[i]t is enough that the [state] statutory scheme ... contains penalty assessment provisions comparable to the Federal Act, that the State is authorized to assess those penalties, and that the overall scheme of the two acts is aimed at correcting the same violations, thereby achieving the same goals.”" }, { "docid": "2906099", "title": "", "text": "circuit. Plaintiffs here seek both injunctive and declaratory relief, as well as civil penalties. The limitations in section 1319(g)(6)(A) apply only to actions for civil penalties. The statute states that violations which the state is diligently prosecuting “shall not be the subject of a civil penalty action.” Under 33 U.S.C § 1365(a), citizens may sue for civil penalties as well as various forms of injunctive relief. Thus, regardless of the applicability of the limitations on civil penalties in section 1319(g)(6)(A), plaintiffs’ right to seek injunctive or declaratory relief appears to be unimpaired. Despite the terms of the statute, some courts have read limitations in section 1319(g)(6)(A) to apply to civil penalty actions as well as injunctive and declaratory relief. In North & South Rivers Watershed Ass’n v. Scituate, 949 F.2d 552 (1st Cir.1991), the court held that the . bar in section 1319(g)(6)(a) applies to injunctive relief as well as civil penalties. Id. at 557-58. The court based its reasoning for departing from the plain meaning of the statute on the subordinate function of citizen suits. See also Arkansas Wildlife v. ICI Americas, Inc., 29 F.3d 376, 383 (8th Cir.1994) (injunctive relief as well as civil penalties foreclosed by comparable state action). The Ninth Circuit has not addressed this issue, but the reasoning of the district court in California Sportfishing Protection Alliance v. City of West Sacramento, 905 F.Supp. 792 (E.D.Cal.1995), is persuasive. In California Sportfishing, the court concluded that “[t]he language of the statute is unambiguous that only civil actions are barred.” Id. at 806. The court also noted the perils of reaching a conclusion at odds with the plain meaning of the statute based on a policy consideration “when dealing with a statute so complex as the Clean Water Act which has within it so many cross currents.” Id. at 806 (citing Pendleton, 11 F.3d at 886-87). It would require a significant departure from the plain meaning of the statute to find plaintiffs’ case for injunctive or declaratory relief barred by section 1319(g)(6)(A). Accordingly, I ADOPT Judge Hubei’s Findings and Recommendation. Defendant’s motion to dismiss [# 5] is" }, { "docid": "16238312", "title": "", "text": "not implicated is buttressed by the Court’s interpretation of the term “comparable state law,” discussed below. b. “comparable state law” Having determined that the payment at issue was not a “penalty,” the district court also concluded that the payment was not “assessed under this subsection, or such comparable State law” within the meaning of § 1319(g)(6)(A)(iii). It is undisputed that the penalty provision in § 13385 of the California Water Code is comparable to the federal Clean Water Act penalty provision of 33 U.S.C. § 1319. It is also not disputed that the payment at issue in this case was not levied pursuant to California Water Code § 13385. The key issue, therefore, is whether a penalty assessed not in accordance with § 13385 but, instead, under the aegis of a related provision of the California statutory scheme is “assessed under this subsection, or such comparable State law.” UNOCAL argues, as it did in the district court, that although the CDO states that it was issued under the authority of California Water Code § 13301, because § 13301 is within the same statutory scheme as § 13385 a penalty assessed under the former provision is assessed under a “comparable State law” within the meaning of 33 U.S.C. § 1319(g)(6)(A)(iii). The district court held that the “comparability assessment is conducted by examining the state statutory enforcement provision involved,” here California Water Code § 13301, and “not the state statutory enforcement scheme as a whole”’ Because California Water Code § 13301 is not comparable to the federal penalty provision in 33 U.S.C. § 1319(g), reasoned the district court, a penalty assessed under § 13301 does not implicate the § 1319(g) (6) (A) (iii) bar on citizen suits. In reaching this conclusion the district court specifically rejected the reasoning of the First Circuit in North and South Rivers Watershed Ass’n v. Scituate interpreting the term “comparable” in § 1319(g)(6)(A)(ii). 949 F.2d 552, 555-556 (1st Cir.1991). In Scituate the First Circuit held that the comparability requirement of § 1319(g)(6)(A)(ii) is met where the state “statutory scheme” contains a penalty provision comparable to the federal" }, { "docid": "21569520", "title": "", "text": "Env’t v. Contract Plating Co., 631 F.Supp. 1291, 1294 (D.Conn.1986). We therefore hold that, under the facts of the present case, ADPC & E was “diligently prosecuting” an administrative penalty action against ICI, within the meaning of 33 U.S.C. § 1319(g)(6)(A)(ii). Third, AWF argues that the Arkansas enforcement provisions are not “comparable” to the CWA, as required under 33 U.S.C. § 1319(g)(6)(A)(ii), particularly with respect to the public notice and comment provisions of § 1319(g)(4)(A). The federal statute requires that “[b]efore issuing an order assessing a civil penalty under this subsection the Administrator [of EPA] ... shall provide public notice of and reasonable opportunity to comment on the proposed issuance of such order.” 33 U.S.C. § 1319(g)(4)(A). AWF argues that the Arkansas statute is not comparable because it only provides an ex post facto citizen’s right to intervene, with no public notice at any time, and no opportunity to comment while the consent order is being proposed. AWF relies upon NRDC v. Vygen Corp., 803 F.Supp. 97, 100-02 (N.D.Ohio 1992) (Vygen), in which the District Court for the Northern District of Ohio held that Ohio’s state laws were not comparable to the CWA, for purposes of applying 33 U.S.C. § 1319(g)(6)(A)(ii), because the state law lacked mandatory procedures for public participation prior to the imposition of a civil penalty. In Vygen, the district court held “since Ohio law has no mandatory public notice requirement, nor a requirement of public notice and opportunity to be heard prior to the issuance of a civil penalty, Ohio’s provisions are not comparable to § 1319(g), and the plaintiffs’ claim is not barred by Ohio’s administrative orders.” 803 F.Supp. at 102; see also Atlantic States Legal Found. v. Universal Tool & Stamping Co., 735 F.Supp. 1404, 1415-16 (N.D.Ind.1990). In response, ICI argues that the term “comparable” means that the state law need only be sufficiently similar to the federal law, not identical. ICI argues that Arkansas law is sufficiently similar because it adequately provides a meaningful opportunity for public participation in the enforcement process. ICI notes that copies of permits, permit applications, and related documentation" }, { "docid": "15027214", "title": "", "text": "less than three months after the 1987 amendment was passed, plaintiff could cite no authority for its narrow reading of the statute. To date, no court in the Second Circuit appears to have construed the language at issue. However, after examining the logic of recent cases in other circuits addressing this question, this court holds that plaintiff’s reading is faulty and that 33 U.S.C. § 1319(g)(6) bars citizen suits where a state agency conducting enforcement proceedings against the defendant has authority to assess civil penalties, regardless of whether the agency has actually assessed such penalties. In Atlantic States Legal Foundation, Inc. v. Tyson Foods, Inc., 682 F.Supp. 1186 (N.D.Ala.1988), reversed on other grounds, 897 F.2d 1128 (11th Cir.1990), the court held that an Alabama law which provides for the imposition of civil penalties by the Alabama Department of Environmental Management (DEM) is a law comparable to § 1319(g). The court reasoned that Congress had amended the Clean Water Act in part to eliminate federal jurisdiction in cases where state agencies had initiated enforcement proceedings: The pertinent provision of section 1319(g)(6) speaks only of prosecution of ‘an action under a State law comparable to this subsection.’ The crucial phrase ‘in a court’ is not found in section 1319(g)(6). Presumably this evinces an intention on the part of Congress to avoid the result in Consolidated Rail. Atlantic States Legal Foundation, 682 F.Supp. 1186, 1188. Thus, the court ruled that it had no jurisdiction despite the fact that the Alabama DEM, like the Connecticut DEP in the ease at bar, had chosen not to impose civil penalties on the defendant. Most recently, a First Circuit district court construed § 1319(g) earlier this year. In North and South Rivers Watershed Ass’n, Inc. v. Town of Scituate, 755 F.Supp. 484 (D.Mass.1991), defendant argued that an Administrative Order issued by the Massachusetts Department of Environmental Protection (DEP) barred a subsequent citizen suit. Plaintiff contended that the DEP issued its order pursuant to a section of state law that does not authorize the imposition of civil penalties, rather than to a related section that does, and thus" }, { "docid": "21393015", "title": "", "text": "1365(a), whether 33 U.S.C. § 1319(g)(6) bars plaintiffs’ action. Section 1319(g)(6)(A) provides, in relevant part, that [A]ny violation ... (n) with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection ... shall not be the subject of a civil penalty action under subsection (d) of this section or section 1321(b) of this title or section 1365 of this title. 33 U.S.C. § 1319(g)(6)(A). Thus, once a state has commenced and is diligently prosecuting an action under a state law that is comparable to § 1319(g), a citizen suit is barred. Id.; see also Knee Deep Cattle Co. v. Bindana Inv. Co., 94 F.3d 514, 516 (9th Cir.1996); Arkansas Wildlife Fed’n v. ICI Americas, Inc., 29 F.3d 376, 379-80 (8th Cir.1994). The district court declined to address the effect of § 1319(g)(6) because the city had not relied upon it and because the court concluded that the motion could be decided based upon the restriction contained in § 1365(b). Having concluded that the district court erroneously relied upon § 1365(b), we are thus left to determine whether § 1319(g)(6) does in fact bar plaintiffs’ action. Specifically, we must determine: (1) whether the TDEC is diligently prosecuting an action against the city; and (2) whether the TDEC is prosecuting that action under a state law comparable to § 1319(g). It is important to note that § 1319(g)(6) does not require that enforcement be undertaken in a court. Section 1319(g)(6)(A)(ii) precludes citizen suits that would be “duplicative of an ‘administrative penalty action.’ ” Citizens for a Better Env’t v. Union Oil Co. of California, 83 F.3d 1111, 1115 (9th Cir.1996). However, diligent prosecution is a requirement under both §§ 1365(b) and 1319(g)(6). Because we have already ratified the district court’s determination that the TDEC’s efforts constitute diligent prosecution, we are left only to decide whether the requirments of TWQCA are comparable to those found in § 1319(g). We begin our analysis by reiterating the fundamental principal that citizen suits are “meant to supplement rather than to supplant governmental action.” Gwaltney, 484" }, { "docid": "16238308", "title": "", "text": "issued a final order not subject to further judicial review and the violator has paid a penalty assessed under this subsection, or such comparable State law, as the case may be, shall not be the subject of a civil penalty action under subsection (d) of this section or section 1321(b) of this title or section 1365 of this title. 33 U.S.C. § 1319(g)(6)(A). 1. Applicability of § 1319(g)(6) (A) (iii) § 1319(g)(6)(A)(iii) precludes this citizen suit if the CDO at issue in this case is a “final order not subject to further judicial review,” and if UNOCAL has paid a “penalty” that was “assessed under this'subsection, or such comparable State law.” Because UNOCAL has not paid a “penalty” “assessed under ... comparable State law” the Court concludes that CBE’s suit is not barred by § 1319(g)(6)(A)(ni). a. “penalty” UNOCAL maintains that the $780,000 it paid to the Regional Board constituted a “penalty” within the meaning of § 1319(g)(6)(A)(iii). The district court concluded that the $2 million payment, of which UNOCAL’s payment was a part,.-was not a penalty but “was simply settling the refiner ies’ state court lawsuit.” The district court noted that the CDO refers to a “payment” not a “penalty ’ and that the CDO clearly stated that it was issued pursuant to the Regional Board’s authority under California Water Code § 13301, governing cease and desist orders. The district court also noted that in the CDO the Regional Board “expressly declined to invoke its [California Water Code] § 13385 authority” to impose a civil penalty. UNOCAL argues, essentially, that it has paid out over $780,000 (10% of which went into the California Water Pollution Cleanup and Abatement Account that is the repository of fines levied pursuant to § 13385, and 90% into a “Selenium Mitigation Fund”) and that it elevates form over substance to call this anything other than a “penalty.” In support of the formal reasoning of the district court, CBE asserts two additional reasons why UNOCAL may not characterize the payment as a penalty. First, UNOCAL itself insisted on characterizing the financial transfer as a “payment”" }, { "docid": "15027215", "title": "", "text": "pertinent provision of section 1319(g)(6) speaks only of prosecution of ‘an action under a State law comparable to this subsection.’ The crucial phrase ‘in a court’ is not found in section 1319(g)(6). Presumably this evinces an intention on the part of Congress to avoid the result in Consolidated Rail. Atlantic States Legal Foundation, 682 F.Supp. 1186, 1188. Thus, the court ruled that it had no jurisdiction despite the fact that the Alabama DEM, like the Connecticut DEP in the ease at bar, had chosen not to impose civil penalties on the defendant. Most recently, a First Circuit district court construed § 1319(g) earlier this year. In North and South Rivers Watershed Ass’n, Inc. v. Town of Scituate, 755 F.Supp. 484 (D.Mass.1991), defendant argued that an Administrative Order issued by the Massachusetts Department of Environmental Protection (DEP) barred a subsequent citizen suit. Plaintiff contended that the DEP issued its order pursuant to a section of state law that does not authorize the imposition of civil penalties, rather than to a related section that does, and thus that the law under which the DEP proceeded was not comparable to § 1319(g). The court held that the relevant comparison under the Clean Water Act was to the overall state regulatory scheme rather than to individual sections of state law. The proper method for determining whether the DEP issued the Order under a comparable state law is not to parse the statute to identify which of its many powers the DEP invoked at a particular time. Rather, it is enough that the Massachusetts statutory scheme contains penalty assessment provisions equivalent to those in the Federal Act. Although the DEP has not yet chosen to employ these penalty assessment provisions in the instant Order, that election does not change the fact that the statutory scheme under which the DEP acts is comparable. Id. at 486. The court also examined the substantive meaning of “comparable.” “A state law that is ‘comparable’ within the meaning of the Federal Act ‘must include provisions as to public notice and participation, penalty assessment, judicial review, and other matters comparable to" } ]

[ { "docid": "6774553", "title": "", "text": "Each statute requires that the criminal lack authorization to enter the vehicle — a requirement alone which will most often ensure some force is used — and that he intend to commit a felony inside. It is difficult to conceive of any principled, significant distinction between the requirements of each statute, and Escudero has made no attempt to articulate one. We will, therefore, follow our precedent and find that burglary of a vehicle under the New Mexico statute constitutes a crime of violence, as the requirements this statute establishes are indistinguishable from those the Texas statute sets forth. French v. Allstate Indent. Co., 637 F.3d 571, 589 (5th Cir.) (under our rule of orderliness, we are bound to follow prior precedent absent an intervening change in the law), cert. denied, — U.S.-, 132 S.Ct. 420, 181 L.Ed.2d 260 (2011). Accordingly, we conclude that the BIA did not err in finding that Escudero’s burglary conviction constituted an aggravated felony, and we deny Escudero’s petition for review as to this ground. III. Finally, we address Escudero’s claims regarding his application for asylum, withholding of removal, and protection under the CAT. We conclude that the BIA correctly determined that Escudero was statutorily precluded from receiving asylum, because he was indeed convicted of an aggravated felony under § 1101(a)(43)(F). 8 U.S.C. § 1158(a)(2)(B)(i). Because we uphold this determination, we lack jurisdiction to review any of Escudero’s remaining claims. 8 U.S.C. § 1252(a)(2)(C). None relates to a legal or constitutional issue. Aside from his arguments regarding the aggravated felony conviction, Escudero asserts only factual issues on appeal, contending that he met his burden of proof before the IJ. Because we do not have jurisdiction to review factual determinations made pursuant to removal orders based upon an aggravated felony, we dismiss Escudero’s petition for review of the BIA’s denial of asylum, withholding, and protection under the CAT. DENIED in part; DISMISSED in part. . It is undisputed that violation of New Mexico's burglary statute is a felony punishable by at least one year of imprisonment. . “To determine whether an alien has committed an aggravated felony," } ]

[ { "docid": "22871605", "title": "", "text": "conviction for an aggravated felony. We have jurisdiction to determine whether we have jurisdiction, Ramadan v. Gonzales, 479 F.3d 646, 649 (9th Cir.2007) (per curiam), and we conclude that we do. This court lacks jurisdiction “to review any final order of removal against an alien who is removable by reason of having committed [an aggravated felony].” 8 U.S.C. § 1252(a)(2)(C); see also 8 U.S.C. § 1227(a)(2)(A)(iii). But this provision applies only “to removal orders, and not to applications for asylum, withholding of removal, or CAT relief.” Arteaga v. Mukasey, 511 F.3d 940, 942 n. 1 (9th Cir.2007) (citing Morales v. Gonzales, 478 F.3d 972, 980 (9th Cir.2007)). Therefore, if the IJ denies withholding of removal or CAT relief on the merits, rather than relying on the aggravated felony conviction, we have jurisdiction to review the merits of these claims. See id. (reviewing withholding of removal and CAT claims on the merits despite the fact that petitioner was found removable as an alien convicted of an aggravated felony); see also Unuakhaulu v. Gonzales, 416 F.3d 931, 933 (9th Cir.2005) (holding that because “8 U.S.C. § 1252(a)(2)(C) divests us only of jurisdiction to review orders of removal that are actually based on a petitioner’s prior aggravated felony conviction ... [w]e ... have jurisdiction to review the BIA’s non-discretionary denial of withholding, which was not predicated on Unuakhaulu’s aggravated felony”). Withholding of removal — whether under INA § 241(b)(3) or CAT — is nondiscretion-ary relief that must be granted to any alien who establishes that he will more likely than not be persecuted or tortured, respectively, in the proposed country of removal. 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 1208.16(d)(1). Even if the applicant has carried his burden of proof, however, withholding of removal will be denied in four narrow circumstances, one of which is potentially relevant here: an alien is not eligible for withholding of removal if he has been convicted of a particularly serious crime. 8 U.S.C. § 1231(b)(3)(B)(ii). If an individual convicted of an aggravated felony is sentenced to five-years imprisonment, he is deemed to have been convicted of a" }, { "docid": "22871604", "title": "", "text": "Report, the IJ acknowledged that gay people suffered discrimination, but characterized violence against them as “random acts of violence” that do not constitute persecution. Thus the IJ concluded that Brom-field had not carried his burden and was not entitled to either form of relief. Bromfield filed a pro se brief before the BIA arguing that the IJ erred in denying relief because Bromfield had shown regular and widespread persecution and torture of homosexuals in Jamaica carried out at least in part by the Jamaican government. The BIA dismissed the appeal and affirmed the IJ’s conclusion that Bromfield failed to sustain the high burden of proof applicable to withholding of removal. The BIA also stated that the record supported the conclusion that Bromfield failed to establish that he would more likely than not be tortured if returned to Jamaica, but did not offer any explanation. Bromfield timely petitioned for review. II. Jurisdiction The government argues that we do not have jurisdiction over this petition for review because Bromfield was found removable on the basis of his conviction for an aggravated felony. We have jurisdiction to determine whether we have jurisdiction, Ramadan v. Gonzales, 479 F.3d 646, 649 (9th Cir.2007) (per curiam), and we conclude that we do. This court lacks jurisdiction “to review any final order of removal against an alien who is removable by reason of having committed [an aggravated felony].” 8 U.S.C. § 1252(a)(2)(C); see also 8 U.S.C. § 1227(a)(2)(A)(iii). But this provision applies only “to removal orders, and not to applications for asylum, withholding of removal, or CAT relief.” Arteaga v. Mukasey, 511 F.3d 940, 942 n. 1 (9th Cir.2007) (citing Morales v. Gonzales, 478 F.3d 972, 980 (9th Cir.2007)). Therefore, if the IJ denies withholding of removal or CAT relief on the merits, rather than relying on the aggravated felony conviction, we have jurisdiction to review the merits of these claims. See id. (reviewing withholding of removal and CAT claims on the merits despite the fact that petitioner was found removable as an alien convicted of an aggravated felony); see also Unuakhaulu v. Gonzales, 416 F.3d 931," }, { "docid": "4580208", "title": "", "text": "is entitled to withholding of removal as a matter of law.”) (footnote and internal quotation marks omitted). . We underscore that whether Siwe may in fact adjust status turns on how the reviewing official exercises his or her Section 209(c) discretion, either in Siwe’s favor or against him. .The Seventh Circuit recently has summarized the differences between withholding and deferral of removal under the CAT: Withholding of removal (under CAT) prohibits returning aliens to a specific country where they would face torture. It is a more secure form of protection than deferral of removal. It can be terminated only if [the Department of Homeland Security] establishes that an alien is not likely to be tortured in that country.... [Like withholding of removal,] [djeferral of removal also prohibits returning aliens to a specific country where they would face torture. However, deferral of removal is granted to aliens who likely would face torture but who are ineligible for withholding of removal (under CAT), for example, certain criminals and persecutors. Deferral of removal is a more temporary form of protection. It can be terminated more quickly and easily if an alien no longer is likely to be tortured in the country of removal, or if the U.S. government receives assurances that the alien will not be tortured if returned. Wanjiru v. Holder, 705 F.3d 258, 263-64 (7th Cir.2013) (citing EOIR Fact Sheet, \"Asylum and Withholding of Removal Relief, Convention Against Torture Protections,” Jan. 15, 2009). . 8 U.S.C. § 1252(a)(2)(C); see also Marquez-Marquez v. Gonzales, 455 F.3d 548, 560-61 (5th Cir.2006). . Escudero-Arciniega, 702 F.3d at 785 (\"Because we do not have jurisdiction to review factual determinations made pursuant to removal orders based upon an aggravated felony, we dismiss Escudero’s petition for review of the BIA’s denial of asylum, withholding, and protection under the CAT.”). . Siwe argued three-member consideration was appropriate because there was a need to “settle inconsistencies among the rulings of different immigration judges,” 8 C.F.R. § 1003.1 (e) (6) (i); \"to establish a precedent construing the meaning of laws,” 8 C.F.R. § 1003.1 (e)(6)(ii); and to \"review a decision" }, { "docid": "3810683", "title": "", "text": "FISHER, Circuit Judge. Ehi Joseph Unuakhaulu, a native and citizen of Nigeria, petitions for review of the Board of Immigration Appeal’s (“BIA”) summary affirmance of the Immigration Judge’s (“IJ”) decision denying him withholding of removal and relief under the Convention Against Torture (“CAT”). The central question is whether we lack jurisdiction to review his petition where the IJ, although denying Unuakhau-lu’s asylum application because of his prior conviction for an aggravated felony, did not rely on that aggravated felony in denying Unuakhaulu’s application for withholding of removal and for relief under CAT. We conclude that 8 U.S.C. § 1252(a)(2)(C) divests us only of jurisdiction to review orders of removal that are actually based on a petitioner’s prior aggravated felony conviction. We therefore have jurisdiction to review the BIA’s nondiscretionary denial of withholding, which was not predicated on Unuakhaulu’s aggravated felony. Reaching the substance of Unuakhaulu’s petition, however, we deny it as without merit. I. Unuakhaulu was admitted to the United States as a visitor on January 17,1986. In February 1997, he was convicted of conspiracy to traffic in counterfeit credit cards in violation of 18 U.S.C. § 371 and sentenced to 18 months in prison. Thereafter, the former Immigration and Naturalization Service initiated proceedings against Unuakhaulu, charging him with being subject to removal as an alien convicted of an aggravated felony, see § 1227(a)(2)(A)(iii), and as an alien who remained as a visitor beyond the time authorized, see § 1227(a)(1)(B). The IJ sustained the charges against him, finding that Unuakhaulu’s prior conviction for credit card fraud was an aggravated felony and that he had remained as a visitor in the United States beyond the time authorized. Unuakhaulu then applied for withholding of removal and for relief under CAT. Subsequently, the government contended that even though Unuakhaulu received only 18 months’ imprisonment for his prior conviction, his credit card fraud was a “particularly serious crime” that should make him ineligible for withholding of removal under § 1231(b)(3)(B). The IJ disagreed, finding that the crime was not particularly serious and that Unuakhaulu was eligible for withholding of removal. As to the merits" }, { "docid": "4580196", "title": "", "text": "the IJ’s denial of CAT relief are not supported by substantial evidence. Siwe thus urges us to grant his petition for review, insisting that “no reasonable adjudicator could have made the Immigration Judge’s adverse credibility ruling.” As discussed above, because Siwe has an aggravated felony conviction, the REAL ID Act limits our jurisdiction in this case to a review of questions of law and constitutional challenges. Siwe submits that, in denying his request for relief under the CAT, the IJ and BIA erred on an issue of fact, i.e., whether Siwe established that he will more likely than not be tortured if he is removed to Cameroon. As the REAL ID Act prevents us from reviewing such factual determinations, however, we may not reach Siwe’s requested CAT relief. Consequently, we dismiss Siwe’s petition for review as to the CAT. C. Reconsideration by a Three-Member Panel Siwe raises a final point of error — in the alternative, should we not be inclined to remand on other bases — regarding the propriety of the BIA’s procedure. In his motion for reconsideration before the BIA, Siwe requested review by a three-member panel, contending that his case satisfies the requirements set forth in 8 C.F.R. § 1003.1(e)(6). A one-member panel denied the motion; it did not address Siwe’s request. As a result, Siwe argues, the BIA abused its discretion, and he urges us to grant his petition and remand for fur ther proceedings before a three-member panel. We need not reach Siwe’s request for reconsideration by a three-member panel in light of our decision to grant his petition and remand for further proceedings regarding Section 209(b). III. CONCLUSION We hold that Section 209(b) is not ambiguous and that its plain wording does not require an alien to maintain his asylum status to apply for adjustment of status under the statute. We therefore grant Siwe’s petition for review as to this issue and vacate the BIA’s decision ordering Siwe’s removal. As we lack jurisdiction to consider Siwe’s request for relief under the CAT, his petition for review as to that issue is dismissed. DISMISSED IN" }, { "docid": "929263", "title": "", "text": "contended therein that the DHS’s Removal Order was improper, in that his Virginia statutory burglary offense is not an aggravated felony under § 1227(a)(2)(A)(iii). On August 4, 2014, the IJ denied Cas-tendet’s applications for withholding of removal and protection under the CAT. The IJ also concluded that he lacked jurisdiction to consider Castendet’s asylum application. Additionally, the IJ deemed himself unauthorized to assess Castendet’s challenge to the DHS’s categorization of his burglary offense as an aggravated felony. See Etienne v. Lynch, 813 F.3d 135, 138 (4th Cir. 2015) (concluding that alien in expedited removal proceedings can challenge legal basis for removal in appropriate court of appeals only). Castendet promptly appealed to the Board of Immigration Appeals (the “BIA”). On January 26, 2015, the BIA ruled that Castendet was not entitled to challenge the legal basis of his removal— i.e., whether his burglary offense qualifies as an aggravated felony — because he had been placed in expedited removal proceedings. The BIA also agreed that the IJ lacked jurisdiction to consider Castendet’s asylum application, but remanded for further consideration of Castendet’s requests for withholding of removal and CAT protection. At the conclusion of the remand proceedings, on June 22, 2015, a different IJ denied Castendet withholding of removal and CAT relief. Castendet again appealed to the BIA, which on October 27, 2015, again affirmed. On November 25, 2015, Castendet petitioned for our review, and he was thereafter removed to Panama. We possess jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). C. On June 17, 2016, six months after removing Castendet to Panama, the DHS cancelled his Removal Order. Three days later, the Attorney General moved to dismiss Castendet’s petition for review, making two contentions. The Attorney General first argued that cancellation of the Removal Order negated the “statutory basis for this Court’s exercise of jurisdiction.” See Motion to Dismiss, Castendet-Lewis v. Sessions, No. 15-2484, at 5 (4th Cir. June 20, 2016), ECF No. 23. Next, he contended that a regulatory provision— § 288.1(d)(2)(iii) of Title 8 of the Code of Federal Regulations—vested the DHS with the authority to cancel the Removal Order. Castendet" }, { "docid": "6774549", "title": "", "text": "“sufficient state action” to support his CAT claim. Accordingly, the IJ denied each of these claims. On appeal to the Board of Immigration Appeals (“BIA”), the BIA dismissed Escudero’s petition, concluding that his burglary conviction was an aggravated felony and the IJ properly denied the additional relief Escudero sought. The BIA agreed that Escudero’s conviction for an aggravated felony precluded him from eligibility for asylum. The BIA declined to decide whether this conviction also rendered Escudero statutorily ineligible for withholding, instead relying upon the IJ’s alternative determination that Escudero failed to satisfy his burden of proof regarding both the withholding of removal and the CAT claims. Escudero timely petitioned for review. II. Section 1252 governs the jurisdiction of federal courts over immigration proceedings. “[Sjection 1252(a)(2)(C) generally prohibits judicial review of ‘any final order of removal against an alien who is removable by reason of having committed’ certain designated criminal offenses, including an aggravated felony under § 1101(a)(43)[.]” Larin-Ulloa v. Gonzales, 462 F.3d 456, 460-61 (5th Cir.2006). Section 1252(a)(2)(D), however, authorizes judicial review of “constitutional claims or questions of law.” Id. at 461. Whether a predicate conviction is an “aggravated felony” is a question of law that we review de novo. Omari v. Gonzales, 419 F.3d 303, 306 (5th Cir.2005). Accordingly, we have jurisdiction to review Escudero’s argument that burglary of a vehicle under the New Mexico statute is not a “crime of violence,” and thus not an aggravated felony, and we turn to this issue first. Section 1101(a)(43)(F) defines an aggravated felony as “a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). A “crime of violence” is any offense “that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. § 16(b). At issue is whether burglary of a vehicle under the New Mexico statute satisfies these definitions. The relevant provision of the New Mexico burglary" }, { "docid": "6774554", "title": "", "text": "regarding his application for asylum, withholding of removal, and protection under the CAT. We conclude that the BIA correctly determined that Escudero was statutorily precluded from receiving asylum, because he was indeed convicted of an aggravated felony under § 1101(a)(43)(F). 8 U.S.C. § 1158(a)(2)(B)(i). Because we uphold this determination, we lack jurisdiction to review any of Escudero’s remaining claims. 8 U.S.C. § 1252(a)(2)(C). None relates to a legal or constitutional issue. Aside from his arguments regarding the aggravated felony conviction, Escudero asserts only factual issues on appeal, contending that he met his burden of proof before the IJ. Because we do not have jurisdiction to review factual determinations made pursuant to removal orders based upon an aggravated felony, we dismiss Escudero’s petition for review of the BIA’s denial of asylum, withholding, and protection under the CAT. DENIED in part; DISMISSED in part. . It is undisputed that violation of New Mexico's burglary statute is a felony punishable by at least one year of imprisonment. . “To determine whether an alien has committed an aggravated felony, courts look to the text of the statute violated, not the underlying factual circumstances.” Lopez-Elias v. Reno, 209 F.3d 788, 792 (5th Cir.2000). If, however, an alien pleads guilty under a divisible statute, at least one provision of which would not qualify as an aggravated felony, courts may look to additional documents to determine whether his conviction \"necessarily” fell under a particular subsection that does constitute an aggravated felony. Larin-Ulloa v. Gonzales, 462 F.3d 456, 464 (5th Cir.2006). It is undisputed that Escudero pled guilty to § 3 0-16-3 (B) of the New Mexico Statute. .On appeal, Escudero does not reurge his argument that the Supreme Court’s decision in Leocal v. Ashcroft, 543 U.S. 1, 7, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), somehow alters the analysis here. In Leocal, the Court determined that \"driving under the influence” is not a crime of violence. Id. at 4, 125 S.Ct. 377. However, it did not undo prior jurisprudence regarding burglary offenses. To the contrary, in discussing residential burglaries, it noted that \"burglary, by its nature involves" }, { "docid": "18143749", "title": "", "text": "C.F.R. § 208.18(e)(1) (“any appeal or petition regarding an action, decision, or claim under the Convention ... shall not be deemed to include or authorize the consideration of any administrative order or decision, or portion thereof, the appeal or review of which is restricted or prohibited by the Act”), they are also entitled to the same jurisdictional allowances — that is, we may review any “constitutional claims or questions of law” relevant to a petitioner’s claim for relief under CAT, despite his aggravated felony conviction, 8 U.S.C. § 1252(a)(2)(D). Unfortunately for Hamid, his argument that the IJ wrongly denied him CAT relief does not depend upon any constitutional issue or question of law. Rather, it comes down to whether the IJ correctly considered, interpreted, and weighed the evidence presented — that is to say, whether the IJ’s conclusion was based on substantial evidence. See Rashiah v. Ashcroft, 388 F.3d 1126, 1131 (7th Cir.2004) (describing substantial-evidence standard of review). There is no indication that the IJ misunderstood the legal standard for granting CAT relief — he properly considered whether it was more likely than not that Hamid would be tortured if returned to Syria, but concluded that it was not. Nor (as discussed above) does it appear that the IJ’s treatment of Hamid’s claim violated any constitutional standards. We therefore find no basis, within the limited scope of our jurisdiction to consider the claims of aggravated felons, to find that the IJ erred. In sum, because Hamid is removable as an aggravated felon, we cannot consider whether the IJ’s factual conclusions (including his conclusion about the likelihood of torture) are supported by substantial evidence, so we Dismiss his petition for review in Case No. 04-1600 for lack of jurisdiction. We do have jurisdiction, de spite Hamid’s aggravated felony, to consider the constitutional claim raised in his second petition for review (challenging the BIA’s denial of his motion to reopen) but his due-process argument does not succeed, so we Deny his petition for review in Case No. 04-2013. . The government originally designated Qatar as the country to which Hamid should be" }, { "docid": "22143481", "title": "", "text": "constitutes a ‘particularly serious crime,’ and denies withholding of removal under the CAT on the basis of the conviction, § 1252(a)(2)(C) bars our review of the denial of withholding.” (citing Unuakhaulu v. Gonzales, 416 F.3d 931, 937 (9th Cir.2005))). As noted, Petitioner does not challenge that he is removable for having committed an aggravated felony, nor did he raise such a challenge before the BIA. Thus, unless an exception applies, we lack jurisdiction to review the denial of withholding. No exception applies in this case. Recently, we decided that a “particularly serious crime” determination is inherently discretionary and is to be reviewed under the abuse-of-discretion standard. Arbid v. Holder, 700 F.3d 379, 382-84 (9th Cir.2012) (per curiam). Thus, under Arbid, § 1252(a)(2)(D) cannot restore jurisdiction to review a “particularly serious crime” determination where, as here, the only challenge to that determination is that it incorrectly assessed the facts. Petitioner has not raised a constitutional or legal question in relation to the “particularly serious crime” determination; instead, he asks for a re-weighing of the factors involved in that discretionary determination. Petitioner’s opening brief supports this characterization of his petition by framing the issue this way: “The IJ and the BIA abused their discretion in the ‘particularly serious crime’ analysis.” (Emphasis added.) The second exception does not apply because the IJ in Petitioner’s case did not address the merits of his withholding claim. Instead, the IJ found Petitioner statutorily ineligible for that relief because the crime underlying his removability was particularly serious. Accordingly, we lack jurisdiction to review the “particularly serious crime” determination. By contrast, we do have jurisdiction over Petitioner’s constitutional arguments regarding his application to adjust status and the revocation of his asylee status. Those arguments raise constitutional claims and questions of law, and so fall squarely within the ambit of § 1252(a)(2)(D). “We review de novo the BIA’s conclusions on questions of law....” Fregozo v. Holder, 576 F.3d 1030, 1034 (9th Cir.2009). Petitioner concedes that his asylee status was revoked pursuant to 8 C.F.R. § 208.24(a)(2), but argues that the regulation is constitutionally defective for usurping or misconstruing congressional" }, { "docid": "22045248", "title": "", "text": "us two petitions for review. The first is the petition for review that Silva-Rengifo filed in this court seeking review of the BIA’s en banc denial of his motion to reopen. As noted, there, the en banc Board denied the motion based upon its conclusion that he had not demonstrated prima facie eligibility for relief under the CAT. The second is the converted habeas petition that Silva-Rengifo originally filed in the district court, challenging the constitutionality of the removal proceedings. B. STANDARD OF REVIEW Although Silva-Rengifo’s habeas corpus petition has now been converted to a petition for review, our standard of review remains the same. “A review for ‘constitutional claims or questions of law,’ as described in § 106(a)(l)(A)(iii) of the REAL ID Act, 8 U.S.C. § 1252(a)(2)(D), mirrors our previously enunciated standard of review over an alien’s habeas petition.” Kamara, 420 F.3d at 210-11. Thus, we review Silva-Rengifo’s constitutional and legal questions de novo, id., but defer to the BIA’s reasonable interpretations of statutes it is charged with administering. INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999); 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). The same standard applies to Silva-Ren-gifo’s petition for review under the REAL ID Act. Prior to enactment of the REAL ID Act, we would not have had jurisdiction to review Silva-Rengifo’s claim because an alien who was removable because of a conviction for an aggravated felony was statutorily barred from petitioning a court of appeals for review of the BIA’s finding that he was ineligible for CAT relief. See 8 U.S.C. § 1252(a)(2)(c). However, the REAL ID Act eliminated that barrier as to “constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals.” See 8 U.S.C. § 1252(a)(2)(D); see also Kamara, 420 F.3d at 211 (noting that REAL ID Act’s jurisdictional grant regarding appeals by aggravated felons extends not just to legal determinations but also to application of law to facts). Accordingly, we also afford de novo" }, { "docid": "6774548", "title": "", "text": "court revoked Escudero’s probation and sentenced him to five years of imprisonment. In 2010, the Department of Homeland Security served Escudero with a Notice to Appear, charging him with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) on the basis of both his burglary and larceny convictions. The Immigration Judge (“IJ”) found Escudero was indeed removable under § 1227(a)(2)(A)(iii) based on his burglary conviction, for having committed an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(F). This provision defines an aggravated felony as, inter alia, a “crime of violence.” The IJ found burglary of a vehicle under the New Mexico statute met this definition, as it involved “the serious risk that force may be used against a person or property of another during the commission of the offense.” Escudero further filed an application for asylum and withholding of removal and sought protection under the Convention Against Torture (“CAT”). The IJ first found the nature of Escudero’s conviction rendered him statutorily barred from asylum or withholding, and further found that Escudero did not present evidence demonstrating “sufficient state action” to support his CAT claim. Accordingly, the IJ denied each of these claims. On appeal to the Board of Immigration Appeals (“BIA”), the BIA dismissed Escudero’s petition, concluding that his burglary conviction was an aggravated felony and the IJ properly denied the additional relief Escudero sought. The BIA agreed that Escudero’s conviction for an aggravated felony precluded him from eligibility for asylum. The BIA declined to decide whether this conviction also rendered Escudero statutorily ineligible for withholding, instead relying upon the IJ’s alternative determination that Escudero failed to satisfy his burden of proof regarding both the withholding of removal and the CAT claims. Escudero timely petitioned for review. II. Section 1252 governs the jurisdiction of federal courts over immigration proceedings. “[Sjection 1252(a)(2)(C) generally prohibits judicial review of ‘any final order of removal against an alien who is removable by reason of having committed’ certain designated criminal offenses, including an aggravated felony under § 1101(a)(43)[.]” Larin-Ulloa v. Gonzales, 462 F.3d 456, 460-61 (5th Cir.2006). Section 1252(a)(2)(D), however, authorizes judicial review of “constitutional claims" }, { "docid": "22220807", "title": "", "text": "CAT relief, but instead relies on 8 U.S.C. § 1252(a)(2)(C)-(D), which divests courts of appeal of jurisdiction to review orders of removal unless the petition for review presents a constitutional issue or question of law. The government argues Morales’s petition for review of the IJ’s denial of her CAT claim presents only factual issues regarding whether she is more likely than not to be tortured if she is returned to Mexico, and therefore, this court does not have jurisdiction to consider her petition for CAT relief. We disagree. First, without regard to whether Morales’s CAT claim presents only factual issues, the IJ applied the wrong legal standard in denying her CAT application. See infra Part II.C. We have jurisdiction under 8 U.S.C. § 1252(a) to determine the proper legal standard for CAT relief. See Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1053 (9th Cir.2006). Second, as to our resolution of factual issues, when an IJ does not rely on an alien’s conviction in denying CAT relief and instead denies relief on the merits, none of the jurisdiction-stripping provisions— § 1231(b)(3)(B), § 1252(a)(2)(B)(ii), or § 1252(a)(2)(C) — apply to divest this court of jurisdiction. See Unuakhaulu, 416 F.3d at 936-37. The government argues Unuakhaulu is not controlling because this court previously decided in Ruiz-Morales v. Ashcroft, 361 F.3d 1219, 1220 (9th Cir.2004), that we lacked jurisdiction to review an alien’s CAT claim where the alien was found removable and denied CAT relief because he had been convicted of an aggravated felony. There is no conflict, however, between Unuakhaulu and Ruiz-Morales. The IJ in Ruiz-Morales found that Ruiz-Morales had committed an aggravated felony and ordered him removed on that basis. Ruiz-Morales, 361 F.3d at 1220-21. In contrast, the IJ in Unuakhaulu “found that Unuakhaulu was removable based on his aggravated felony conviction, but neither ordered him removed on that basis nor relied on the aggravated felony conviction in denying Unuakhaulu’s application for withholding of removal and for relief under CAT.” Unuakhaulu, 416 F.3d at 933. The present case is similar to Unuak-haulu in that the IJ did not rely on Morales’s conviction in" }, { "docid": "4580197", "title": "", "text": "his motion for reconsideration before the BIA, Siwe requested review by a three-member panel, contending that his case satisfies the requirements set forth in 8 C.F.R. § 1003.1(e)(6). A one-member panel denied the motion; it did not address Siwe’s request. As a result, Siwe argues, the BIA abused its discretion, and he urges us to grant his petition and remand for fur ther proceedings before a three-member panel. We need not reach Siwe’s request for reconsideration by a three-member panel in light of our decision to grant his petition and remand for further proceedings regarding Section 209(b). III. CONCLUSION We hold that Section 209(b) is not ambiguous and that its plain wording does not require an alien to maintain his asylum status to apply for adjustment of status under the statute. We therefore grant Siwe’s petition for review as to this issue and vacate the BIA’s decision ordering Siwe’s removal. As we lack jurisdiction to consider Siwe’s request for relief under the CAT, his petition for review as to that issue is dismissed. DISMISSED IN PART, and VACATED IN PART and REMANDED for further proceedings consistent with this opinion. . 8 U.S.C. § 1159(b). . Because the BIA entered two separate orders in Siwe’s case, he timely filed two petitions in this court — Nos. 12-60546 and 12-60698 — each addressing a different one of the orders. The petitions were consolidated for consideration, but, for simplicity, we refer to them in the singular, i.e., as \"the petition.” . Escudero-Arciniega v. Holder, 702 F.3d 781 (5th Cir.2012) (per curiam). . See INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C); Vo v. Gonzales, 482 F.3d 363, 366 (5th Cir.2007) (\"The REAL ID Act amended 8 U.S.C. § 1252 to preclude judicial review of any removal order based on, inter alia, commission of an aggravated felony. However, the Act also provides that none of its provisions shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review. This court therefore has jurisdiction to decide the legal and constitutional questions raised by [the petitioner].”) (internal citations and" }, { "docid": "4580195", "title": "", "text": "our own conclusion. Ventura does not mandate that we now remand this issue to afford the BIA “a third bite at [the] apple.” When we review that question of law in light of the plain language of the statute, we are convinced that Siwe’s construction of Section 209(b) is the correct one. We therefore grant Siwe’s petition on this issue and hold that an alien, like Siwe, whose asylum has been terminated, is not prohibited from applying for adjustment of status under Section 209(b). B. Deferral of Removal under the CAT An alternative ground for relief that would permit Siwe to remain in the United States is deferral of removal under the CAT. The IJ denied CAT relief because she found his testimony “implausible” and because he “provided little corroborating evidence or other witnesses to substantiate his claims.” The IJ concluded that Siwe failed to “establish that he will more likely than not be tortured if removed to Cameroon.” Siwe counters that the IJ’s factual findings and credibility determination, and the Board’s decision in affirming the IJ’s denial of CAT relief are not supported by substantial evidence. Siwe thus urges us to grant his petition for review, insisting that “no reasonable adjudicator could have made the Immigration Judge’s adverse credibility ruling.” As discussed above, because Siwe has an aggravated felony conviction, the REAL ID Act limits our jurisdiction in this case to a review of questions of law and constitutional challenges. Siwe submits that, in denying his request for relief under the CAT, the IJ and BIA erred on an issue of fact, i.e., whether Siwe established that he will more likely than not be tortured if he is removed to Cameroon. As the REAL ID Act prevents us from reviewing such factual determinations, however, we may not reach Siwe’s requested CAT relief. Consequently, we dismiss Siwe’s petition for review as to the CAT. C. Reconsideration by a Three-Member Panel Siwe raises a final point of error — in the alternative, should we not be inclined to remand on other bases — regarding the propriety of the BIA’s procedure. In" }, { "docid": "22871621", "title": "", "text": "or his two prior visits to Jamaica are irrelevant to that determination. Additionally, we remand Bromfield’s CAT claim so that the agency can apply the correct legal standard and determine whether Brom-field is entitled to relief under CAT. On remand, the agency should permit both parties to submit new evidence relevant to these claims. PETITION GRANTED; REMANDED. . We accept Bromfield’s testimony as true because the BIA did not make an adverse credibility determination. Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir.2004). . Bromfield did not challenge this finding before the BIA. As a result, we do not consider whether the crimes actually constitute aggravated felonies or whether he is eligible for asylum. . The relief Bromfield seeks under CAT is a form of withholding of removal. See 8 C.F.R. § 208.16(c). Except in the jurisdiction discussion, infra, where the same restrictions apply regardless of whether withholding is sought on the basis of persecution or torture, the phrase \"withholding of removal,\" as used in this opinion, refers to withholding based on risk of future persecution, while the phrase \"relief under CAT” refers to withholding based on risk of torture. . The government attempts to distinguish Un-uakhaulu by pointing out that the IJ ordered Bromfield removable as charged — i.e., on the basis of the aggravated felony charge in his Notice to Appear — whereas the IJ in Unuak-haulu did not specify whether Unuakhaulu was ordered removed because of his aggravated felony or because he overstayed his visa. See 416 F.3d at 934. The government's argument fails. Our subsequent precedent makes clear than even in cases where the aggravated felony is the only basis for the finding of removability, we have jurisdiction to review the IJ’s determination on the merits. See Arteaga, 511 F.3d at 942 & n. 1. Bromfield was denied relief not because of his conviction but because the IJ and BIA thought that he had failed to prove his withholding of removal and CAT claims on the merits. Thus, we have jurisdiction to review Bromfield’s petition in so far as it challenges the denial of relief on" }, { "docid": "22143478", "title": "", "text": "for withholding of removal because he had been convicted of a particularly serious crime. With respect to the application to adjust status, the BIA noted that it lacked jurisdiction to consider Petitioner’s constitutional arguments regarding the revocation of his asylee status. Petitioner timely seeks review, challenging (1) the BIA’s evaluation of the factors supporting the “particularly serious crime” finding that precluded withholding and (2) the constitutionality of the regulation under which his asylee status was revoked. Petitioner does not dispute that he is removable for having been convicted of an aggravated felony. At the outset, the government asserts that we lack jurisdiction over this petition, citing the jurisdiction-stripping provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, § 306, 110 Stat. 3009-546, 3009-607. Specifically, 8 U.S.C. § 1252(a)(2)(C) provides: Notwithstanding any other provision of law (statutory or nonstatutory), ... and except as provided in subparagraph (D), no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed [among other crimes, an aggravated felony ]. (Emphasis added.) But subparagraph (D) of that same statute provides: Nothing in subparagraph ... (C) ... shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section. Subparagraph (D), added by the REAL ID Act of 2005, restored our jurisdiction over “constitutional claims or questions of law,” even in cases involving aggravated felons. See Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir.2007) (per curiam) (internal quotation marks omitted). We have described the cumulative effect of those two statutes as follows: With respect to asylum, withholding of removal, and CAT claims of a petitioner who was convicted of an offense covered by § 1252(a)(2)(C), we have jurisdiction to review the denial of an asylum application and to review the denial of withholding of removal and CAT relief when a petitioner raises questions of law, including mixed questions of law and fact, or constitutional claims. Morales v. Gonzales, 478" }, { "docid": "21434558", "title": "", "text": "cause” (internal quotation marks omitted)); Ctr. for Reprod. Law & Policy v. Bush, 304 F.3d 183, 193-94 (2d Cir.2002) (recognizing that “ordinarily we are not to assume the existence of jurisdiction in favor of reaching an ‘easier’ merits issue” but acknowledging “an exception to the rule” for limited and “peculiar circumstances” (internal quotation marks omitted)). Accordingly, we now consider the issue, and join the majority of courts that have done so, holding that when an alien who is otherwise removable due to the commission of a covered criminal offense seeks deferral of removal under the CAT, appellate jurisdiction is limited to review of constitutional claims and questions of law. See Escudero-Arciniega v. Holder, 702 F.3d 781, 785 (5th Cir.2012) (“Escudero asserts only factual issues on appeal.... Because we do not have jurisdiction to review factual determinations made pursuant to removal orders based upon an aggravated felony, we dismiss Escudero’s petition for review of the BIA’s denial of ... protection under the CAT.”); Pieschacon-Villegas v. Att’y Gen., 671 F.3d 303, 309-10 (3d Cir.2011) (“This Court would lack jurisdiction to consider” petitioner’s “disagreement with the BIA’s determination that he failed to sufficiently demonstrate that public officials in Colombia would likely acquiesce in his torture.... This Court does, however, have jurisdiction over constitutional claims or questions of law [including] ... whether the Board adjudicated [petitioner’s] application for deferral of removal under an incorrect legal standard.” (internal quotation marks and citations omitted)); Constanza v. Holder, 647 F.3d 749, 754 (8th Cir.2011) (same); Saintha v. Mukasey, 516 F.3d 243, 249-51 (4th Cir.2008) (finding that because alien was removable by reason of an aggravated felony conviction, § 1252(a)(2)(C) prohibited evaluation of the factual merits of his CAT claim and alien could not “repackage[ ] his ... argument ... in an attempt to create a reviewable legal question where there is none”); Jean-Pierre v. U.S. Att’y Gen., 500 F.3d 1315, 1320 (11th Cir.2007) (same); Tran v. Gonzales, 447 F.3d 937, 943 (6th Cir.2006) (“Pursuant to § 1252(a)(2)(C) and (D), our review of Tran’s CAT claim is limited to questions of law or constitutional issues.”). But see Issaq" }, { "docid": "4580209", "title": "", "text": "of protection. It can be terminated more quickly and easily if an alien no longer is likely to be tortured in the country of removal, or if the U.S. government receives assurances that the alien will not be tortured if returned. Wanjiru v. Holder, 705 F.3d 258, 263-64 (7th Cir.2013) (citing EOIR Fact Sheet, \"Asylum and Withholding of Removal Relief, Convention Against Torture Protections,” Jan. 15, 2009). . 8 U.S.C. § 1252(a)(2)(C); see also Marquez-Marquez v. Gonzales, 455 F.3d 548, 560-61 (5th Cir.2006). . Escudero-Arciniega, 702 F.3d at 785 (\"Because we do not have jurisdiction to review factual determinations made pursuant to removal orders based upon an aggravated felony, we dismiss Escudero’s petition for review of the BIA’s denial of asylum, withholding, and protection under the CAT.”). . Siwe argued three-member consideration was appropriate because there was a need to “settle inconsistencies among the rulings of different immigration judges,” 8 C.F.R. § 1003.1 (e) (6) (i); \"to establish a precedent construing the meaning of laws,” 8 C.F.R. § 1003.1 (e)(6)(ii); and to \"review a decision by an immigration judge ... that [was] not in conformity with the law,” 8 C.F.R. § 1003.1 (e)(6)(iii). . 8 U.S.C. § 1159(b)." }, { "docid": "21434557", "title": "", "text": "the CAT, we have at times avoided the jurisdictional question by assuming “hypothetical” jurisdiction. See Roig v. Holder, 580 Fed.Appx. 4, 6 (2d Cir.2014) (summary order) (“To the extent our jurisdiction to review the denial of deferral of removal under the CAT is unresolved, we may assume jurisdiction and deny a petition on the merits where, as here, the agency denied petitioner’s claim and his underlying challenges to that decision are without merit.” (internal citation omitted)); Keita v. Holder, 486 Fed.Appx. 951, 952 (2d Cir.2012) (summary order) (“We assume, without deciding, that we have jurisdiction in this case of denial of deferral of removal.”). However, such an assumption is prohibited in all but the narrowest of circumstances. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (criticizing exercise of “hypothetical” jurisdiction as “earr[ying] the courts beyond the bounds of authorized judicial action and ... offend[ing] fundamental principles of separation of powers” and explaining that “[wjithout jurisdiction the court cannot proceed at all in any cause” (internal quotation marks omitted)); Ctr. for Reprod. Law & Policy v. Bush, 304 F.3d 183, 193-94 (2d Cir.2002) (recognizing that “ordinarily we are not to assume the existence of jurisdiction in favor of reaching an ‘easier’ merits issue” but acknowledging “an exception to the rule” for limited and “peculiar circumstances” (internal quotation marks omitted)). Accordingly, we now consider the issue, and join the majority of courts that have done so, holding that when an alien who is otherwise removable due to the commission of a covered criminal offense seeks deferral of removal under the CAT, appellate jurisdiction is limited to review of constitutional claims and questions of law. See Escudero-Arciniega v. Holder, 702 F.3d 781, 785 (5th Cir.2012) (“Escudero asserts only factual issues on appeal.... Because we do not have jurisdiction to review factual determinations made pursuant to removal orders based upon an aggravated felony, we dismiss Escudero’s petition for review of the BIA’s denial of ... protection under the CAT.”); Pieschacon-Villegas v. Att’y Gen., 671 F.3d 303, 309-10 (3d Cir.2011) (“This Court would" } ]

[ { "docid": "23538718", "title": "", "text": "(1967), and rejected petitioner’s motion to stay the federal court’s action until the state law issues could be settled in a declaratory judgment suit then pending in the state courts, 388 F. 2d, at 262 (1968) (on petition for rehearing). The Court of Appeals erred in refusing to stay its hand. The state law issue which is crucial in this case is one of vital concern in the arid State of New Mexico, where water is one of the most valuable natural resources. The issue, moreover, is a truly novel one. The question will eventually have to be resolved by the New Mexico courts, and since a declaratory judgment action is actually pending there, in all likelihood that resolution will be forthcoming soon. Sound judicial administration requires that the parties in this case be given the benefit of the same rule of law which will apply to all other businesses and landowners concerned with the use of this vital state resource. The writ of certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded with directions that the action be stayed in accordance with the prayer of petitioner. Federal jurisdiction will be retained in the District Court in order to insure a just disposition of this litigation should anything prevent a prompt state court determination. It is so ordered. Mr. Justice Brennan, whom Mr. Justice Douglas and Mr. Justice Marshall join, concurring. I concur solely on the ground that this case presents one of the “narrowly limited ‘special circumstances’ ” which justify the invocation of “[t]he judge-made doctrine of abstention,” Zwickler v. Koota, 389 U. S. 241, 248. The “special circumstances,” as the Court states, arise from the fact that “[t]he state law issue which is crucial in this case is one of vital concern in the arid State of New Mexico, where water is one of the most valuable natural resources.” Cf. Alabama Public Service Comm’n v. Southern R. Co., 341 U. S. 341; Burford v. Sun Oil Co., 319 U. S. 315; see Zwickler v. Koota, supra, at 249, n. 11." } ]

[ { "docid": "2288198", "title": "", "text": "motions in an opinion set forth at 634 F.Supp. 656 (E.D.Cal.1986). The district court certified its decision for interlocutory appeal under 28 U.S.C. § 1292(b). II In denying the City’s motion for abstention, the district court declined to abstain under the doctrine enunciated in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), and declined to dismiss for reasons of “wise judicial administration” under Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). We review its decision for an abuse of discretion. See Turf Paradise v. Arizona Downs, 670 F.2d 813, 819 (9th Cir.1982) (citing Pue v. Sillas, 632 F.2d 74, 78 (9th Cir.1980)), cert. denied, 456 U.S. 1011, 102 S.Ct. 2308, 73 L.Ed.2d 1308 (1982). We affirm the district court’s refusal to abstain or dismiss. A Burford abstention is appropriate where ... there have been presented difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case at bar. [citation]____ In some cases, however, the state question itself need not be determinative of state policy. It is enough that exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial policy concern. Colorado River Water, 424 U.S. at 814, 96 S.Ct. at 1244. See Burford, 319 U.S. 315, 63 S.Ct. 1098. The purpose of Burford abstention is the avoidance of federal intrusion into matters which are largely of local concern and which are within the special competence of local courts. International Brotherhood of Electrical Workers, 614 F.2d 206, 212 n. 1 (9th Cir.1980). In Kaiser Steel Corp. v. W.S. Ranch Co., 391 U.S. 593, 594, 88 S.Ct. 1753, 1754, 20 L.Ed.2d 835 (1968), the Supreme Court held that whether a trespass relating to water rights could be a “public use” within the meaning of a state constitution constituted a “truly novel” issue of state law which warranted Burford abstention. The court noted that," }, { "docid": "18328497", "title": "", "text": "U.S. 912, 96 S.Ct. 2239, 48 L.Ed.2d 839 (1976), recog nized three types of abstention used by federal courts: (1) Abstention is appropriate in case presenting a federal constitutional issue which might be mooted or presented in a different posture by a state court determination of pertinent state law. (“Pullman” abstention); (2) Abstention is appropriate where there have been presented difficult questions of state law bearing on the policy problems of substantial public import whose importance transcends the result in the case then at bar; {“Burford” abstention); (3) Abstention is appropriate where federal jurisdiction has been invoked for the purpose of restraining state criminal proceedings. (“Younger” abstention). 424 U.S. at 814-816, 96 S.Ct. at 1244-45, 47 L.Ed.2d at 496-97. Defendant does not contend that the third type of abstention is applicable, but argues that (1) or (2) applies to this case. This case is inappropriate for Pullman abstention because this case presents no unsettled questions of state law that may be dispositive of the case and avoid the need for decision on a federal constitutional question. See 17 C. Wright, A. Miller and E. Cooper, supra, § 4272 at 449. Indeed, this case really involves no federal constitutional question. Burford type abstention is also inappropriate here. As explained by Justice Brennan: (b) Abstention is also appropriate where there have been presented difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar. In some cases, however, the state question itself need not be determinative of state policy. It is enough that exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. Colorado River Water Conservation District v. United States, 424 U.S. at 814-15, 96 S.Ct. at 1244-45, 47 L.Ed.2d at 496-97. Undoubtedly, defendant is correct that “adjudication of water rights in arid western states is peculiarly one involving important issues of state law and goes to the heart of vital states policies.” Defendant’s" }, { "docid": "10853248", "title": "", "text": "debtor against a bank. III. Abstention Is Not Warranted Under the Burford Doctrine “The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.” Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) (quoting Cnty. of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959)). “Abstention from the exercise of federal jurisdiction is the exception, not the rule.” Id. As such, abstention has been “confined” to a handful of limited circumstances, including where there exists a difficult question of state law where federal review may disrupt ongoing state efforts to establish a coherent policy on an issue of local concern. Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943) (cited in Colorado River, 424 U.S. at 813-18, 96 S.Ct. 1236). The purpose of Burford abstention is to “avoid resolving difficult state law issues involving important public policies or avoid interfering with state efforts to maintain a coherent policy in an area of comprehensive regulation or administration.” Am. Disposal Servs., Inc. v. O’Brien, 839 F.2d 84, 87 (2d Cir.1988). Under the doctrine, “a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) when there are ‘difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result of the case then at bar;’ or (2) where the ‘exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.’ ” New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 361-62, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) (quoting Colorado River, 424 U.S. at 814, 96 S.Ct. 1236). “Through application of Burford abstention, federal courts are able to" }, { "docid": "17687382", "title": "", "text": "at-, 103 S.Ct. at 939. We observe initially that the district court’s stay order in this case cannot be justified under any traditional abstention doctrine. Pullman abstention is inappropriate here because no federal constitutional issue is presented. See Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) (abstention appropriate when federal constitutional issue might be mooted or presented in a different posture by state court determination of pertinent state law). Second, abstention under the standards set out in Bur-ford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943) (Burford abstention) is inappropriate because any federal adjudication of the pendent state law issues in this case will not occasion an impermissible intrusion into “matters which are largely of local concern and which are within the special competence of local courts,” International Brotherhood of Electrical Workers, Local No. 1245 v. Public Service Commission, 614 F.2d 206, 212 n. 1 (9th Cir.1980) (purpose of Burford abstention); the state and federal law issues are not inextricably intertwined and federal review will not disrupt state efforts to establish a coherent policy. Id. at 211; see Knudsen Corp. v. Nevada State Dairy Commission, 676 F.2d 374, 376-78 (9th Cir.1982). Third, Younger abstention, see Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), is inappropriate because that doctrine is only applicable to federal actions which interfere with state criminal proceedings or civil proceedings brought to vindicate vital state interests. See Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 431-432,102 S.Ct. 2515, 2521-22, 73 L.Ed.2d 116 (1982); Miofsky v. Superior Court of State of California, 703 F.2d 332, 337-38 (9th Cir.1983). Moreover, resolution of the exclusive federal claims in this case will not interfere in any way with the ongoing state court proceedings. Instead, the district court based its order on principles associated with the “wise judicial administration” exception to the exercise of jurisdiction. See Colorado River Water Conservation District v. United States, 424 U.S. 800, 817-18, 96 S.Ct. 1236, 1246-47, 47 L.Ed.2d 483 (1976) (Colorado River)." }, { "docid": "10859692", "title": "", "text": "Burford-type abstention is appropriate in this case. See Burford v. Sun Oil Co., 319 U.S. 315, 332, 63 S.Ct. 1098, 1106, 87 L.Ed. 1424 (1943) (abstention appropriate where regulatory scheme in question “so clearly involved basic problems of [state] policy that equitable discretion should be exercised to give the [state] courts the first opportunity to consider them”). The Supreme Court recently described the Burford doctrine as follows: Where timely and adequate state-court review is available, a federal court [should abstain from hearing a case]: (1) when there are “difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar”; or (2) where the “exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.” New Orleans Public Service Inc. v. Council of City of New Orleans, 491 U.S. 350, 361, 109 S.Ct. 2506, 2514, 105 L.Ed.2d 298 (1989) (quoting Colorado River Water Conservation District v. United States, 424 U.S. 800, 814, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976)). See also Hartford Insurance Co. v. Borg- Warner Corp., 913 F.2d 419, 425 (7th Cir.1990). The Supreme Court has recently suggested that Burford abstention “might be relevant in a case involving elements of the domestic relationship even when the parties do not seek divorce, alimony, or child custody. This would be so when a case presents ‘difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar.’” Ankenbrandt, 504 U.S. at 705, 112 S.Ct. at 2216 (citations omitted). Indeed, several courts have found that Burford abstention is appropriate in circumstances similar to those present here. For example, the Fifth Circuit addressed claims similar to those made by Mrs. Strasen in DuBroff v. DuBroff, 833 F.2d 557 (5th Cir.1987), and concluded that Burford abstention was appropriate because: “[1] there is perhaps no state administrative scheme in which federal court intrusions are less appropriate" }, { "docid": "6097928", "title": "", "text": "demonstrated how they [wejre suffering any hardship as a result of the new Rule” since the threatened injury complained of by plaintiffs was speculative and remote. App. at 72a. The district court thus dismissed plaintiffs’ amended complaint and this appeal followed. On appeal, Felmeister and Isaacs urge us to vacate the district court’s dismissal order and remand the matter to the district court with instructions to enjoin enforcement of the revised rule. Defendants, however, argue for affirmance either on the grounds relied upon by the district court or on alternative grounds advanced by them before the district court but not addressed in that court’s decision, i.e., lack of standing, lack of subject matter jurisdiction, lack of a case or controversy, and res judicata. We find it unnecessary to address these alternative grounds for affirmance because we conclude, for the reasons set forth below, that the matter is not ripe for adjudication. We must first, however, address the primary ground for the district court’s order — Burford abstention. II. BURFORD ABSTENTION “Abstention from the exercise of federal jurisdiction is ... ‘the exception, not the rule.’ ” United Services Automobile Ass’n v. Muir, 792 F.2d 356, 360 (3d Cir.1986) (quoting Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976)), cert. denied, 479 U.S. 1031, 107 S.Ct. 875, 93 L.Ed.2d 830 (1987). The genesis of the Burford abstention doctrine lies in the case bearing that name, which involved a specialized aspect of Texas’ complex regulatory system devised to conserve the state’s oil and gas resources through a well-organized local administrative and judicial decision-making hierarchy. Burford v. Sun Oil Co., 319 U.S. 315, 318-26, 63 S.Ct. 1098, 1099-1103, 87 L.Ed. 1424 (1943). As subsequent Supreme Court precedent illustrates, Burford abstention is appropriate where a case presents a difficult and technical question of state law involving important state policies such that the exercise of federal jurisdiction would be disruptive of a state’s efforts “to establish a coherent policy with respect to a matter of substantial public concern.” Colorado River, 424 U.S. at 814, 96" }, { "docid": "23218616", "title": "", "text": "The Supreme Court has established three basic abstention doctrines which are relevant to the case at bar. First, under the doctrine set forth in Railroad Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), abstention is appropriate in federal cases in which a constitutional issue may be avoided or altered by a state court’s construction of pertinent state law. Second, under the Burford rule, abstention may be appropriate where a federal case raises “difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the ease then at bar.” Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 814, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976); Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed.2d 1424 (1943). Third, “wise judicial administration” may counsel federal abstention when there is concurrent state litigation which creates “exceptional circumstances.” Colorado River, 424 U.S. at 818, 96 S.Ct. at 1246. However, when federal jurisdiction is proper, abstention is the exception, not the rule. Colorado River, 424 U.S. at 813, 96 S.Ct. at 1244. The district court found that abstention was warranted in this case under the Bur-ford rule. Defendants urge us to uphold that decision, and, in addition, argue that both the Pullman and Colorado River exceptions to the exercise of federal jurisdiction are applicable. Plaintiffs argue that there are no bases for abstention under any of the three doctrines. We are persuaded by plaintiffs’ arguments. Burford Abstention The Burford rule applies in situations where it is prudent for a federal court to refrain from interfering in cases presenting state law issues relating to complex state regulations where the federal court decision may disrupt important state policies. Burford, 319 U.S. at 331-32, 63 S.Ct. at 1106. Such abstention is appropriate when a federal case presents a difficult issue of state law, the resolution of which will have a significant impact on important state policies and for which the state has provided a comprehensive regulatory system with channels for review by state courts or" }, { "docid": "18328498", "title": "", "text": "question. See 17 C. Wright, A. Miller and E. Cooper, supra, § 4272 at 449. Indeed, this case really involves no federal constitutional question. Burford type abstention is also inappropriate here. As explained by Justice Brennan: (b) Abstention is also appropriate where there have been presented difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar. In some cases, however, the state question itself need not be determinative of state policy. It is enough that exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. Colorado River Water Conservation District v. United States, 424 U.S. at 814-15, 96 S.Ct. at 1244-45, 47 L.Ed.2d at 496-97. Undoubtedly, defendant is correct that “adjudication of water rights in arid western states is peculiarly one involving important issues of state law and goes to the heart of vital states policies.” Defendant’s Brief, page 39. But the present case is not an adjudication of water rights, rather, it is an antitrust claim arising out of federal law. Issues of state policy are relevant only to determining whether state action immunity should apply, and a decision on that question will have little or no impact upon implementation of state policy. Further, plaintiff’s state law claims do not involve adjudication of water rights, but are based on settled principles of contract and unfair competition. Neither would the exercise of federal review in this case be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. This case does not involve review of state administrative decisions, which is the situation in which this form of abstention was created, see Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), or implementation of state water policy. California water law is germane here only to determine whether state action immunity applies. Finally, defendants claim that abstention is proper in" }, { "docid": "5475771", "title": "", "text": "the state proceedings to raise constitutional challenges. 102 S.Ct. at 2522; U.S. v. Anderson Co., 705 F.2d 184 (6th Cir.1983). The final category, of abstention, Burford abstention, derives its name from Burford v. Sun Oil Company, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). There the Court upheld abstention where the “exercise of federal review of the [state law] question in a ease and in similar eases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.” Colorado River Water Conservation District, 424 U.S. at 814, 96 S.Ct. at 1245. In Burford, the Texas legislature had centralized the administration of a regulatory scheme for oil and gas in one agency, with judicial review in a single state district court in Travis County, Texas. Burford, 319 U.S. at 325-26, 63 S.Ct. at 1103-04. The federal courts inconsistently interpreted state law which required a specialized knowledge of oil and gas matters. This resulted in uncertainty and confusion in the state’s conservation program. The Court found that these circumstances justified abstention and dismissed the action. Id. at 324, 327-31, 63 S.Ct. at 1102, 1104-06. The Burford abstention, however, is not appropriate “merely because resolution of a federal question may result in the overturning of a state policy.” Zablocki v. Redhail, 434 U.S. 374, 380 n. 5, 98 S.Ct. 673, 678 n. 5, 54 L.Ed.2d 618 (1978); Colorado River Conservation District, 424 U.S. at 815-16, 96 S.Ct. at 1245-46. The State must exhibit an overriding interest in the subject matter. BT Investment Managers Inc., 559 F.2d at 955. Additionally, the state must centralize review in a forum with special competence. See Nasser v. City of Homewood, 671 F.2d 432, 440 (11th Cir.1982). The key question is whether an erroneous federal court decision could impair the state’s effort to implement its policy. Turf Paradise, Inc. v. Arizona Downs, 670 F.2d 813, 820 (9th Cir.), cert. denied, 456 U.S. 1011, 102 S.Ct. 2308, 73 L.Ed.2d 1308 (1982); BT Investment Managers Inc., 559 F.2d at 955. In the present case, the Pullman doctrine is inapplicable." }, { "docid": "14752131", "title": "", "text": "art. I, § 20 ; Missouri Pacific Railway v. Nebraska, 164 U.S. 403, 417,17 S.Ct. 130, 135, 41 L.Ed. 489 (1896). Therefore Pullman abstention to permit application of this “mirror image” state constitutional provision would not be appropriate. See, e.g., Examining Board of Engineers, Architects, and Surveyors v. Flores de Otero, 426 U.S. 572, 598, 96 S.Ct. 2264, 2279, 49 L.Ed.2d 65 (1976) (abstention not appropriate under state constitutional provision similar to federal constitution equal protection clause); Pue v. Sillas, 632 F.2d at 81. B. Burford Abstension Abstention may also be appropriate under the standards originally set out in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), to avoid “federal intrusion into matters which are largely of local concern and which are within the special competence of local courts.” International Brotherhood of Electrical Workers, Local Union No. 1245 v. Public Service Commission, 614 F.2d 206, 212 n. 1 (9th Cir.1980). In considering Burford abstention this court has examined whether the state channels into a single court lawsuits challenging the state agency’s actions, whether the federal issues are inextricably linked to the state law issues, and whether federal adjudication would interfere with the state’s efforts to maintain a consistent policy. See Knudsen Corp., 676 F.2d at 377; International Brotherhood of Electrical Workers, 614 F.2d at 211. Hawaii has not created specialized courts to hear cases arising under the Act and the federal due process issue is not linked to complex state law issues. Moreover, we have recently specifically refused to apply Burford abstention to cases involving zoning and land use questions, even though, as appellees suggest, issues regarding land use and regulation are special local concerns. See International Brotherhood, 614 F.2d at 211; Isthmus Landowners Association v. California, 601 F.2d 1087 (9th Cir.1979) (challenge to coastal zoning regulations); Rancho Palos Verdes Corp. v. City of Lagu-na Beach, 547 F.2d 1092 (9th Cir.1976) (zoning challenge); Santa Fe Land Improvement Company v. City of Chula Vista, 596 F.2d 838 (9th Cir.1979). Thus, Burford abstention is not appropriate in this case. C. Prudential Abstention — Colorado River" }, { "docid": "2143696", "title": "", "text": "concern is that the denial of these rights would result in irreversible consequences. Moreover, piecemeal adjudication would cause a chilling effect bringing about the same result. In sum, the burdens that Pullman-type abstention would place on plaintiffs is too great to be justified by the minimal benefits that such abstention may produce in altering the difficult constitutional questions presented in this case. B. The State’s Attorney also contends that the district court should have refrained from exercising jurisdiction under the abstention doctrine as articulated in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). See generally C. Wright, Law of Federal Courts § 52 at 222 (3d ed. 1976). Burford -type abstention is appropriate when the matter sub judice bears on policy problems of substantial public import whose importance transcends the result in the particular controversy. Colorado River, supra, 424 U.S. at 814, 96 S.Ct. 1236. Unlike Pullman-type abstention, Burford -type abstention does not require unclarity in a state law. Rather, a court abstaining under Burford relegates a federal issue to the state courts because of their superior competence to adjudicate such matters or because the federal issues touch matters of traditional state concern, the resolution of which is of singular importance to the administration of state affairs. BT Investment Managers, Inc. v. Lewis, 559 F.2d 950, 955 (5th Cir. 1977). See also Kelly Services, Inc. v. Johnson, 542 F.2d 31, 32 (7th Cir. 1976). Abstention is warranted in such situations because federal review of the question “would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.” Colorado River, supra, 424 U.S. at 814, 96 S.Ct. at 1245. The State’s Attorney is correct in asserting that the issues raised in this case bear on policy considerations of substantial public interest. But there is nothing about the nature of the questions which concern matters of traditional and predominant state interest or which involve a specialized aspect of local law. Nor is there anything in the history of state judicial experience which suggests that state courts" }, { "docid": "7008245", "title": "", "text": "U.S. 800, 813-17, 96 S.Ct. 1236, 1244-46, 47 L.Ed.2d 483 (1976). 1. Burford-type abstention In Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), the Supreme Court held that the district court should dismiss the suit before it because of the complexity of the state law issue, the expertise of the state court, and the need for coherent state doctrine in the area. Burford- type abstention is appropriate, therefore, only where there are difficult questions of state law bearing on policy problems whose importance transcends the result in the case. Colorado River Water Conservation District v. United States, 424 U.S. 800, 814, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976); Zablocki v. Redhail, 434 U.S. 374, 379 n. 5, 98 S.Ct. 673, 677 n. 5, 54 L.Ed.2d 618 (1978). Typical Burford abstention cases concern state administrative regulation of matters such as oil exploration (Burford); eminent domain (Louisiana Power & Light Co. v. Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959)); railroad passenger service (Alabama Public Service Commission v. Southern Railway, 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002 (1951); and temporary employee services (Kelly Services, Inc. v. Johnson, 542 F.2d 31 (7th Cir. 1976)). In those cases there was a concern that “exercise of federal review of the questions [at issue] would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial state concern.” Colorado River Water Conservation District, supra 424 U.S. at 814, 96 S.Ct. at 1244. The Ryan and Otto cases involve no state regulatory issues. In fact they involve no issues of state law whatsoever. A federal court decision would not interfere with any state program. The only “coherent policy” surrounding the reapportionment issue is adherence to the federal constitutional requirement of “one-person, one-vote.” Davis v. Mann, 377 U.S. 678, 690, 84 S.Ct. 1441, 1447, 12 L.Ed.2d 609 (1963). Burford abstention is inapplicable. 2. Younger-type abstention The Otto plaintiff urges Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) as a basis for abstention. In Ohio" }, { "docid": "3494589", "title": "", "text": "infra, some of our own land use and zoning abstention opinions illustrate the variance in decisions following Thibodaux. Two of the Court’s recent decisions help to clarify abstention under Burford, which is the type of abstention with which we are today concerned. The Court found that abstention as such was inappropriate in Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), but nonetheless reinstated the district court’s decision to dismiss the complaint for “reasons of wise judicial administration,” 424 U.S. at 818, 96 S.Ct. at 1246, because there was a concurrent state proceeding. Although rejecting the application of any of the abstention doctrines, the Court’s discussion clarified the proper role of Burford abstention. The Court stated: Abstention is ... appropriate where there have been presented difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the case then at bar.... In some eases ... the state question itself need not be determinative of state policy. It is enough that exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. 424 U.S. at 814, 96 S.Ct. at 1244. More recently, the Court had occasion to consider and reject the application of the Burford abstention doctrine in a case that involved the question of federal preemption in New Orleans Public Service, Inc. v. Council of New Orleans, 491 U.S. 350, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989). The Court further clarified the scope of Burford abstention: Where timely and adequate state-court review is. available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) when there are “difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar”; or (2) where the “exercise of federal review of the question in a case and in similar eases would be disruptive of" }, { "docid": "15244058", "title": "", "text": "F.Supp. 1460, 1466 (S.D.N.Y), aff'd, 768 F.2d 501 (2d Cir.1985) (quoting Colorado River Water Cons. Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976)). The Superintendent argues that the instant action “is one of those exceptional cases where the district court should decline to decide a dispute properly before it.” Canady, supra, 608 F.Supp. at 1466. The Superintendent contends that the result he desires is justified under the abstention doctrines of Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and Colorado River, supra, 424 U.S. at 800, 96 S.Ct. at 1236. The Court will discuss each doctrine separately. 1. Burford Abstention “Burford abstention is a consequence of the federalist policy of comity between state and federal sovereignties.” Canady, supra, 608 F.Supp. at 1468. In short, Bur-ford abstention allows federal courts “to exercise their discretion to refrain from interfering with state policymaking and enforcement efforts in complex areas which are primarily of state concern and perogative.” Id. [This type of a]bstention is ... appropriate where there have been presented dif ficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar. Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25 [79 S.Ct. 1070, 3 L.Ed.2d 1058] (1959)____ See also Kaiser Steel Corp. v. W.S. Ranch Co., 391 U.S. 593 [88 S.Ct. 1753, 20 L.Ed.2d 835] (1968); Hawks v. Hamill, 288 U.S. 52 [53 S.Ct. 240, 77 L.Ed. 610] (1933). In some cases, however, the state question itself need not be determinative of state policy. It is enough that exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. Colorado River, supra, 424 U.S. at 814, 96 S.Ct. at 1244. The above-quoted language indicates that one factor considered by the federal courts in exercising Burford" }, { "docid": "2288199", "title": "", "text": "[citation]____ In some cases, however, the state question itself need not be determinative of state policy. It is enough that exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial policy concern. Colorado River Water, 424 U.S. at 814, 96 S.Ct. at 1244. See Burford, 319 U.S. 315, 63 S.Ct. 1098. The purpose of Burford abstention is the avoidance of federal intrusion into matters which are largely of local concern and which are within the special competence of local courts. International Brotherhood of Electrical Workers, 614 F.2d 206, 212 n. 1 (9th Cir.1980). In Kaiser Steel Corp. v. W.S. Ranch Co., 391 U.S. 593, 594, 88 S.Ct. 1753, 1754, 20 L.Ed.2d 835 (1968), the Supreme Court held that whether a trespass relating to water rights could be a “public use” within the meaning of a state constitution constituted a “truly novel” issue of state law which warranted Burford abstention. The court noted that, “in the arid State of New Mexico,” the question presented was a crucial one of state law which should await state court adjudication. Id. In Colorado River Water, while stating that Burford abstention was unavailable, the Supreme Court nonetheless upheld the district court’s dismissal of the case. It did so in the interest of “wise judicial administration” in light of several factors which counseled in favor of unified state proceedings. Among these factors were concurrent state jurisdiction over the claims, and the McCarran Amendment, 43 U.S.C. § 666, which evinced a strong federal policy against piecemeal adjudication of water rights in a river system. 424 U.S. at 819, 96 S.Ct. at 1247. B In this case, the district court refused abstention on the grounds that: (1) a decision on the immunity question would have little or no impact upon implementation of state water policy; and (2) state water law was germane only as determinative of immunity, and thus the exercise of federal jurisdiction would not be disruptive of state efforts to establish a coherent policy" }, { "docid": "959643", "title": "", "text": "constitutional claim is alternative to, rather than dependent upon, the state law claims. Since the state law issues are not logically preliminary to the federal constitutional issue, the second element of the Second Circuit’s test for abstention is missing, and Pullman abstention is therefore inapplicable. B. Burford abstention. Burford abstention is a consequence of the federalist principle of comity between state and federal sovereignties. In a nutshell, this brand of abstention permits federal courts to exercise their discretion to refrain from interfering with state policymaking and enforcement efforts in complex areas which are primarily of state concern and prerogative. [Burford a]bstention is ... appropriate where there have been presented difficult questions of state law bearing on problems of substantial public import whose importance transcends the result in the case then at bar. Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25 [79 S.Ct. 1070, 3 L.Ed.2d 1058] (1959)____ See also Kaiser Steel Corp. v. W.S. Ranch Co., 391 U.S. 593 [88 S.Ct. 1753, 20 L.Ed.2d 835] (1968); Hawks v. Hamill, 288 U.S. 52 [53 S.Ct. 240, 77 L.Ed. 610] (1933). In some cases, however, the state question itself need not be determinative of state policy. It is enough that exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern____Burford v. Sun Oil Co., 319 U.S. 315 [63 S.Ct. 1098, 87 L.Ed. 1424] (1943). Colorado River, 424 U.S. at 814, 96 S.Ct. at 1244. If the state law issues presented by the case are not unclear, the federal court should not abstain, see, e.g., Board of Educ. v. Bosworth, 713 F.2d 1316, 1320 (7th Cir.1983); Naylor v. Case and McGrath, Inc., 585 F.2d 557, 565 (2d Cir.1978) (abstention is inappropriate where state law is clear so that risk of disrupting development of state law is minimal). Unclear state law, however, is a compelling factor in favor of abstention when the issues pertain to matters of predominantly local concern. See Grossman v. Axelrod, 466 F.Supp." }, { "docid": "5934727", "title": "", "text": "the result that a Puerto Rico court would reach, had it stayed the action, or that the liquidator’s forum would reach, had the action been forwarded there. Thus, we reject the Commissioner’s argument that the Erie doctrine compels us to dismiss the appeal against CIS and stay the proceeding against Lopez. B. Relevancy of Burford Abstention. In the alternative, the Commissioner urges that we abstain from hearing the instant appeal under the rule of Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). In its most recent discussion of Burford abstention, see New Orleans Pub. Serv., Inc. v. City Council of New Orleans [NOPSI], 491 U.S. 350, 360-64, 109 S.Ct. 2506, 2513-16, 105 L.Ed.2d 298 (1989), the Supreme Court explained that the doctrine counsels federal courts “sitting in equity” to refrain from interfering with “proceedings or orders of state administrative agencies” when “timely and adequate state court review is available” and: (1) when there are ‘difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar’; or (2) where the ‘exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.’ Id. at 361, 109 S.Ct. at 2514 (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 814, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976)). In sum, NOPSI cabins the operation of the Burford doctrine. Post-NOPSI Burford applies only in narrowly circumscribed situations where deference to a state’s administrative processes for the determination of complex, policy-laden, state-law issues would serve a significant local interest and would render federal-court review inappropriate. Abstention will be “the exception, not the rule.” Id. 491 U.S. at 359, 109 S.Ct. at 2513 (citation and internal quotation marks omitted); accord County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89, 79 S.Ct. 1060, 1062-63, 3 L.Ed.2d 1163 (1959). In light of this recent characterization of Burford abstention, we have" }, { "docid": "2288200", "title": "", "text": "“in the arid State of New Mexico,” the question presented was a crucial one of state law which should await state court adjudication. Id. In Colorado River Water, while stating that Burford abstention was unavailable, the Supreme Court nonetheless upheld the district court’s dismissal of the case. It did so in the interest of “wise judicial administration” in light of several factors which counseled in favor of unified state proceedings. Among these factors were concurrent state jurisdiction over the claims, and the McCarran Amendment, 43 U.S.C. § 666, which evinced a strong federal policy against piecemeal adjudication of water rights in a river system. 424 U.S. at 819, 96 S.Ct. at 1247. B In this case, the district court refused abstention on the grounds that: (1) a decision on the immunity question would have little or no impact upon implementation of state water policy; and (2) state water law was germane only as determinative of immunity, and thus the exercise of federal jurisdiction would not be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. The court found no “exceptional circumstances” presented by state water policy, “a subject which is unambiguous.” 634 F.Supp. at 664-65. We agree substantially with the district court’s analysis. It is possible to characterize this case as one which presents this difficult question of state law: whether a restriction on transfer of surplus water violates the policy in favor of voluntary transfer and against waste. As the district court noted, however, resolution of this question is important only insofar as it determines the federal question of immunity, and not as it bears on policy problems so important that they transcend the result in this case. Every antitrust case which presents a question of Parker immunity necessarily involves construction or application of some state law. Although we choose not to characterize California water law as “unambiguous,” we do not confront an unsettled question of state law such as in Louisiana Power & Light v. Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959), or Kaiser Steel." }, { "docid": "5925496", "title": "", "text": "that “[wjhether the QDRO met the requirements of ERISA is not in dispute, or at the very least this issue has not been addressed by either party.” Because Judge Hood did not make a finding about the DRO’s validity under ERISA, it was an abuse of discretion for Judge Borman to hold that the law-of-the-case doctrine barred him from considering this issue. B. Abstention This Court reviews abstention decisions de novo. See Heitmanis v. Austin, 899 F.2d 521, 527 (6th Cir.1990) (citing Litteral v. Bach, 869 F.2d 297, 298 (6th Cir.1989). Since abstention is an “extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it,” “[o]nly the clearest of justifications” will warrant abstention. See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813-19, 96 S.Ct. 1236, 1244-47, 47 L.Ed.2d 483 (1976). The district court apparently dismissed this case pursuant to the Burford abstention doctrine. See Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). Burford abstention is used to avoid conflict with a state’s administration of its own affairs. See id. It applies only if a federal court’s decision on a state law issue is likely to “interfere with the proceedings or orders of state administrative agencies.” See New Orleans Pub. Serv. Inc. v. Council of New Orleans, 491 U.S. 350, 361, 109 S.Ct. 2506, 2514, 105 L.Ed.2d 298 (1989). The Burford abstention should not be applied unless: (1) a case presents “difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar,” or (2) the “exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.” See Colorado River, 424 U.S. 800, 814, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) (discussing Burford). The Bmford abstention doctrine is inapplicable here for several reasons. First, there is no state administrative agency involved in the dispute. Second, there is" }, { "docid": "3992619", "title": "", "text": "the Texas Railroad Commission granting the petitioner Burford a permit to drill oil wells in the East Texas oil field. Federal jurisdiction was present on the basis of both diversity of citizenship and federal question-a contention by the oil companies that the order denied them due process of law. Texas had in place a comprehensive regulatory scheme for the allocation of oil resources, which was a matter of substantial state concern. Moreover, the state provided a uniform method for determination of cases by the Commission and state courts to ensure uniformity. Any federal rights at issue could be heard in the state court, with ultimate review of the federal question fully preserved. Id. 319 U.S. 333-34, 63 S.Ct. at 1107-08. Under Burford, abstention may be appropriate “to avoid federal intrusion into matters which are largely of local concern and which are within the special competence of local courts.” International Bhd., 614 F.2d at 212 n. 1. Recently, the Supreme Court has stated that “[wjhile Burford is concerned with protecting complex state administrative processes from undue federal interference, it does not re quire abstention whenever there exists such a process, or even in all cases where there is a ‘potential for conflict’ with state regulatory law or policy.” New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 362, 109 S.Ct. 2506, 2515, 105 L.Ed.2d 298 (1989) (quoting Colorado River, 424 U.S. at 815-16, 96 S.Ct. at 1245). In an effort to limit the application of abstention under the Burford principle, this circuit generally requires certain factors to be present for abstention to apply: (1) that the state has concentrated suits involving the local issue in a particular court; (2) the federal issues are not easily separable from complicated state law issues with which the state courts may have special competence; and (3) that federal review might disrupt state efforts to establish a coherent policy. Knudsen Corp. v. Nevada State Dairy Comm’n, 676 F.2d 374, 377 (9th Cir.1982). If the district court determines that Burford abstention is appropriate under the circumstances, dismissal rather than stay of" } ]

[ { "docid": "22661903", "title": "", "text": "Justice Stevens delivered the opinion of the Court. In Anders v. California, 386 U. S. 738 (1967), we gave a negative answer to this question: “May a State appellate court refuse to provide counsel to brief and argue an indigent criminal defendant’s first appeal as of right on the basis of a conclusory statement by the appointed attorney on appeal that the case has no merit and that he will file no brief?” Brief for Petitioner in Anders v. California, O. T. 1966, No. 98, p. 2. The question presented by this case is remarkably similar and therefore requires a similar answer. I Petitioner is indigent. After a trial in the Montgomery County, Ohio, Court of Common Pleas, he and two codefendants were found guilty of several serious crimes. Petitioner was sentenced to a term of imprisonment of 18 to 28 years. On January 8, 1985, new counsel was appointed to represent him on appeal. Counsel filed a timely notice of appeal. On June 2, 1986, petitioner’s appellate counsel filed with the Montgomery County, Ohio, Court of Appeals a document captioned “Certification of Meritless Appeal and Motion.” Excluding this caption and the certificate evidencing its serv ice on the prosecutor’s office and petitioner, the document in its entirety read as follows: “Appellant’s attorney respectfully certifies to the Court that he has carefully reviewed the within record on appeal, that he has found no errors requiring reversal, modification and/or vacation of appellant’s jury trial convictions and/or the trial court’s sentence in Case No. 84-CR-1056, that he has found no errors requiring reversal, modification and/or vacation of appellant’s jury trial convictions and/or the trial court’s sentence in Case No. 84-CR-1401, and that he will not file a meritless appeal in this matter. “MOTION “Appellant’s attorney respectfully requests a Journal Entry permitting him to withdraw as appellant’s appellate attorney of record in this appeal thereby relieving appellant’s attorney of any further responsibility to prosecute this appeal with the attorney/client relationship terminated effective on the date file-stamped on this Motion.” App. 35-36. A week later, the Court of Appeals entered an order allowing appellate" } ]

[ { "docid": "8665024", "title": "", "text": "PER CURIAM: In two separate appeals from criminal convictions, consolidated for disposition, court-appointed defense counsel move to withdraw, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), on the ground that there is no non-frivolous basis for appeal. Because counsel’s Anders briefs fail to address adequately the reasonableness of defendants’ sentences, we deny the motions to withdraw without prejudice to their subsequent renewal, and defer consideration of the government’s motions for summary affirmance until renewed consideration of the motions to withdraw. Defendant-appellant Clifton Whitley appeals from a judgment of conviction en tered in the United States District Court for the Northern District of New York (Kahn, J.), following a plea of guilty to one count of making false statements to a firearm’s dealer, in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(2). The court imposed a sentence of forty-six months imprisonment, to be followed by a three year term of supervised release, a sentence at the bottom of the guidelines range. Defendant-appellant Clarence L. Artis, Jr., appeals from a judgment entered in the United States District Court for the Northern District of New York (McAvoy, J.), following a jury trial at which he was convicted on one count of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g), and one count of unlawful possession of ammunition in violation of 18 U.S.C. § 922(g). Artis was sentenced to a term of forty-one months imprisonment to run concurrently on both counts and a term of supervised release. He appealed, and we remanded for the district court to consider whether Artis should be resen-teneed in light of the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and this court’s decision in United States v. Crosby, 397 F.3d 103 (2d Cir.2005). On remand, the district court concluded that resentencing was not warranted and that the sentence previously imposed was “appropriate and reasonable.” We will not grant an Anders motion unless we are “satisfied that counsel has diligently searched the record for any arguably meritorious issue" }, { "docid": "16082685", "title": "", "text": "with intent to distribute less than 50 kilograms of marijuana, in violation of 21 U.S.C. § 841(b)(1)(D); (2) conspiracy to commit the same, in violation of 18 U.S.C. § 846; (3) possession with intent to distribute more than 5 grams of a substance containing cocaine base, in violation of 21 U.S.C. § 841(b)(1)(B); and (4) possession with intent to distribute less than 500 grams of a substance containing cocaine, in violation of 18 U.S.C. § 841(b)(1)(C). Aside from his double jeopardy argument, Defendant does not challenge these convictions on appeal. . Appointed appellate counsel filed an Anders brief suggesting Defendant’s appeal is frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In response, Defendant filed a motion to waive appellate counsel and proceed pro se. We allowed Defendant’s motion and counsel withdrew. In the Anders brief, appellate counsel included an ineffective assistance of trial counsel argument out of an abundance of caution in order to preserve the issue for collateral review. As we explained in United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.1995) (en banc): ''[Ineffective assistance of counsel] claims brought on direct appeal are presumptively dismissible, and virtually all will be dismissed. The reasons for this rule are self-evident.... A factual record must be developed in and addressed by the district court in the first instance for effective review.” (internal citations and footnote omitted). Here, Defendant’s appellate counsel has not even pointed to specific errors that trial counsel made, so no way exists for us to review the ineffective assistance of counsel claim. . Because the court did not swear the initial jury, we need not address the question of whether \"manifest necessity” resulting from prior defense counsel's conflict of interest required the selection of a second jury. See Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); United States v. Shinault, 147 F.3d 1266, 1275 (10th Cir.1998). . To establish Defendant did not have the right to transport or possess firearms in the State of Michigan at the time of his arrest, the Government has" }, { "docid": "22660609", "title": "", "text": "F.3d 778, 779 (3d Cir.2000). Third Circuit Local Appellate Rule 109.2(a) reflects the guidelines the Supreme Court promulgated in Anders to assure that indigent clients receive adequate and fair representation. Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant trial counsel’s Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, it will discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order supplemental briefing. Third Circuit L.A.R. 109.2(a). The Court’s inquiry when counsel submits an Anders brief is thus twofold: (1) whether counsel adequately fulfilled the rule’s requirements; and (2) whether an independent review of the record presents any nonfrivolous issues. Marvin, 211 F.3d at 780 (citing United States v. Tabb, 125 F.3d 583 (7th Cir.1997); and United States v. Wagner, 103 F.3d 551 (7th Cir.1996)). This Court, following the Seventh Circuit’s analysis in Tabb, established the first inquiry as dispositive: “except in those cases in which frivolousness is patent, we will reject briefs ... in which counsel argue the purportedly frivolous issues aggressively without explaining the faults in the arguments, as well as those where we are not satisfied that counsel adequately attempted to uncover the best arguments for his or her client.” Marvin, 211 F.3d at 781. In this case, we reject the Anders brief for the latter reason. A. Adequacy of Counsel’s Anders Brief The duties of counsel when preparing an Anders brief are (1) to satisfy the court that counsel has thoroughly examined" }, { "docid": "22703687", "title": "", "text": "OPINION OF THE COURT BECKER, Chief Judge. I. Donald Wayne Marvin pled guilty to conspiracy, robbery, and the use of a firearm during a crime of violence. Marvin wanted to appeal aspects of his sentencing, but Marvin’s counsel filed an Anders motion, requesting to withdraw from representing him and expressing his belief that there were no nonfrivolous arguments for appeal. After reviewing the brief, we conclude that it is inadequate, and deny counsel’s motion. In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Supreme Court explained the general duties of a lawyer representing an indigent criminal defendant on appeal when the lawyer seeks leave to withdraw from continued representation on the grounds that there are no nonfrivolous issues to appeal. An-ders struck down a process that allowed courts of appeals to accept a mere assertion by counsel that he or she found the appeal to be “without merit.” Id. at 743, 87 S.Ct. 1396. The Court suggested, however, that if, after a “conscientious examination” of the record, counsel found no nonfrivolous issues for appeal, he or she could submit a brief “referring to anything in the record that might arguably support the appeal.” Id. at 744, 87 S.Ct. 1396. Many courts took this as a prescription, but the Supreme Court recently explained that it was only a suggestion. See Smith v. Robbins, — U.S.-, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Each state is free to use any process, Smith explained, so long as defendants’ rights to effective representation are not compromised. See id. at 753. The relevant Third Circuit rule tracks the Anders suggestion: Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After" }, { "docid": "9795657", "title": "", "text": "base in violation of 21 U.S.C. § 841(a)(1), and one count of intentional use of a firearm in relationship to a drag trafficking crime in violation of 18 U.S.C. § 924(c)(1) and § 2. The jury returned a verdict of guilty to the possession offense and not guilty to the firearm offense. The district court sentenced Washington to 210 months imprisonment. Washington was represented at trial and on this appeal by court-appointed counsel. Washington’s counsel filed a notice of appeal on Washington’s behalf but, after reviewing the entire record, determined that there was no merit to Washington’s appeal. Pursuant to the guidelines set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d '493 (1967), counsel nonetheless submitted a brief and appeared at oral argument on Washington’s behalf. In accordance with the requirements of Anders, furthermore, we have examined the entire record in this case and have found no other meritorious issues for appeal. On October 5, 1994, one week after the Court heard arguments in this case, the Clerk of the Court notified Washington that he had the right under Anders to file a pro se supplemental brief. The Clerk allowed Washington 30 days to file a supplemental brief. Washington did not submit such a brief, and the 30-day period has expired. II. The record clearly demonstrates that Washington was not involved in any way in the trafficking of drugs. He did not sell drugs, and he was not a courier of drugs. He simply bought cocaine, which he planned to use himself and to share with his friends. However, Washington’s intent to share the cocaine with others is sufficient for a court to find that he possessed drugs with intent to distribute. part of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (the “1970 Act”), 21 U.S.C. § 801 et seq., proscribes “distribution” of controlled substances, as opposed to “facilitation of sale.” See United States v. Hernandez, 480 F.2d 1044, 1046 (9th Cir.1973). The term “distribute” means “to deliver ... a controlled substance.... ” 21 U.S.C. § 802(11). “Deliver” means “the actual, constructive," }, { "docid": "22703688", "title": "", "text": "no nonfrivolous issues for appeal, he or she could submit a brief “referring to anything in the record that might arguably support the appeal.” Id. at 744, 87 S.Ct. 1396. Many courts took this as a prescription, but the Supreme Court recently explained that it was only a suggestion. See Smith v. Robbins, — U.S.-, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Each state is free to use any process, Smith explained, so long as defendants’ rights to effective representation are not compromised. See id. at 753. The relevant Third Circuit rule tracks the Anders suggestion: Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant trial counsel’s Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, it will discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order supplemental briefing. Third Circuit Rule 109.2(a). This rule, like the Anders case itself, provides only a general explanation of the contours of the court’s and counsel’s obligations in the Anders situation. However, two opinions of the Court of Appeals for the Seventh Circuit, United States v. Tabb, 125 F.3d 583 (7th Cir.1997), and United States v. Wagner, 103 F.3d 551 (7th Cir.1996), have shed new light on the interpretation of Anders. These opinions fill in gaps left by Anders and its early progeny with respect to two critical questions: (1) the responsibilities of counsel in submitting an Anders brief (Tabb); and (2) the duties of the courts of appeals" }, { "docid": "11778383", "title": "", "text": "PER CURIAM: Francisco Baraga appeals from his sentence of 70 months’ imprisonment, 8 years’ supervised release and a $50 special assessment imposed following his plea of guilty to conspiracy to distribute cocaine within 1000 feet of a school in violation of 21 U.S.C. § 846. Martin Estrella appeals from his sentence of 131 months’ imprisonment and a $100 special assessment imposed following his plea of guilty to conspiracy to distribute cocaine within 1000 feet of a school, in violation of 21 U.S.C. § 846, and possession of a firearm in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924. Gold-stein, Weinstein & Fuld (“GWF”), Baraga’s retained counsel, and Howard S. Ripps, Es-trella’s retained counsel, request permission to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Although Anders motions are typically made by counsel appointed for indigent defendants pursuant to Fed.R.Crim.P. 44 and the Criminal Justice Act, 18 U.S.C. § 3006A, retained counsel may properly file Anders motions. Although we have never commented on this practice, we have granted Anders motions by retained counsel. See, e.g., Grimes v. United States, 607 F.2d 6, 7 (2d Cir.1979). The Supreme Court has declared in the Anders context that retained and appointed counsel share the responsibility not to “consume the time and the energies of the court or the opposing party by advancing frivolous arguments.” McCoy v. Court of Appeals of Wisc. Dist., 486 U.S. 429, 436, 108 S.Ct. 1895, 1901, 100 L.Ed.2d 440 (1988). GWF and Ripps both claim that the court should grant their requests because the appeals contain no non-frivolous issues. The government has moved for summary affirmance as to both defendants. Because the Anders briefs are inadequate, we deny GWF and Ripps permission to withdraw until the defendants have been notified by the Clerk of their respective counsels’ desires and of the opportunity to have new counsel appointed. The government’s motions for summary affirmance are denied. GWF’s and Ripps’ briefs fail to demonstrate a minimal effort to “search the record with care, and then to explain to an" }, { "docid": "11218811", "title": "", "text": "DAN AARON POLSTER, District Judge. Rayshun Demetrius Sublett appeals his convictions and sentences, pursuant to guilty pleas, stemming from two separate bank robberies. Sublett was charged with and convicted of, among other crimes, both armed and unarmed bank robbery for each of the two incidents. After Sublett’s counsel filed an appellate brief and a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Sixth Circuit directed counsel to file letter briefs on the issue of whether the counts, convictions and sentences for unarmed bank robbery and armed bank robbery under sections (a) and (d), respectively, of the Federal Bank Robbery Act, 18 U.S.C. § 2113, were multiplicitous and violated the constitutional prohibition against double jeopardy. For the reasons stated below, we AFFIRM the convictions but VACATE the sentences and special penalty assessments for the unarmed bank robbery convictions charged in Counts One and Four of the indictment. We note that this ruling has no impact on Sublett’s total prison sentence of twenty years. Background In June 2001, Rayshun Sublett robbed two separate branches of Bank One in Louisville, Kentucky. He was subsequently charged, in a six-count indictment, with unarmed bank robbery in violation of 18 U.S.C. § 2113(a), armed bank robbery in violation of § 2113(d), and brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) with respect to each of the two robberies. He pled guilty to all charges except brandishing a firearm during a second crime of violence (Count Six), which carried a minimum mandatory prison sentence of 25 years, to be served consecutively to any other sentence he received. 18 U.S.C. § 924(c)(l)(C)(i). His plea agreement, pursuant to Fed.R.Civ.P. 11(c)(1), required the district court to impose a total twenty-year prison sentence if it determined that Sublett’s plea was voluntary and he was competent to enter it. After determining as much, the district court dismissed Count Six and purported to merge the unarmed bank robbery counts (One and Four) with the armed bank robbery counts (Two and Five) for sentencing purposes. However," }, { "docid": "23501663", "title": "", "text": "TACHA, Circuit Judge. Following this court’s affirmance of his conviction and sentence on direct appeal, defendant Willis Jeffrey Kelly filed a motion seeking relief under Fed.R.Crim.P. 32 and 35. The district court sua sponte re-characterized the motion as one challenging the convictions and sentence under 28 U.S.C. § 2255 and denied relief. Because of the implications of the court’s action on the prohibition against successive § 2255 motions, we conclude the court should have first given Kelly notice of its intent to recharacterize his motion and an opportunity to withdraw or supplement it. Since the court did not provide Kelly with this opportunity, we vacate the order dismissing the case and remand. I. Kelly was convicted of burglary of a credit union and attempted escape from a federal holding facility and was sentenced to serve sixty months in prison and ordered to pay restitution. His counsel perfected an appeal, but decided the appeal was frivolous and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Kelly did not file a separate brief, and this court affirmed the convictions and sentence. See United States v. Kelly, No. 98-2339, 1999 WL 339692 (10th Cir. May 28, 1999). Several months after our decision on appeal, Kelly filed a pro se “Motion to Correct the Presentence Investigation Report And to Correct or Reduce Sentence,” stating that he was seeking relief pursuant to Fed.R.Crim.P. 32(c)(3)(D) and 35(a) and (b). In his motion, Kelly challenged a number of factual statements in the pre-sentence report and contended he should be resentenced within the range of thirty-three to forty-one months. The government responded by contending that Kelly’s claims were irrelevant or had been waived and that his motion should be summarily denied. In its memorandum opinion and order, the district court noted that Kelly filed his motion under Rules 32 and 35, but stated that the motion “was treated administratively as a motion under 28 U.S.C. § 2255.” R. Doc. 4 at 1. The court found that Kelly’s allegations did not invoke the provisions of either Rule 32 or" }, { "docid": "19929163", "title": "", "text": "OPINION IRENAS, Senior United States District Judge. Richard Martin Pulyer (hereafter “Pu-lyer” or “Defendant”), appeals his sentence of 78 months imposed after he pleaded guilty to 26 counts of mail fraud (in violation of 18 U.S.C. § 1341) and access device fraud (in violation of 18 U.S.C. § 1029(a)(2)). Pulyer’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), along with a Motion to Withdraw as Counsel, while Pulyer has filed a pro se brief in support of his appeal. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise jurisdiction over the sentencing order pursuant to 28 U.S.C. § 1291. For the reasons set forth below, we will affirm the sentence and grant counsel’s request to withdraw. I. Pursuant to a written plea agreement with the United States, Pulyer pled guilty to 26 counts of mail fraud and access device fraud on June 7, 2004. The Second Revised Pre-sentencing Investigation Report recommended a Sentencing Guideline offense level of 24, including enhancements of four points because the offense involved fifty or more victims and two points for abusing a position of trust. (App. at pp. 148-49). The Probation Department also recommended a criminal history category of III. (App. at p. 151). Although the plea was taken before the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the discretion granted to the District Court by this decision applied to Pulyer’s sentencing, which occurred thereafter. On January 27, 2005, Pulyer filed a Notice of Motion for Downward Departure, in which U.S.S.G. § 5K2.13 (Diminished Capacity) was cited as the sole basis for the departure. (App. at p. 116). However, the brief in support of this motion argued, inter alia, that (i) the offense level calculations, including those for number of victims, loss amount, and abuse of position of trust, were erroneous; (ii) the criminal history score was overstated; (iii) the loss amount overstated the seriousness of the offense (Application Note 10 to U.S.S.G. § 2F1.1, since deleted); (iv) a" }, { "docid": "23465262", "title": "", "text": "OPINION OF THE COURT HUTCHINSON, Circuit Judge. Kathy-Ann Tannis (Tannis) appeals a judgment of conviction and sentence the United States District Court for the District of New Jersey imposed on her after she pled guilty to a charge of possessing approximately 374 grams of a mixture containing cocaine base, with intent to distribute, in violation of 21 U.S.C.A. § 841(a)(1). Tannis was sentenced pursuant to the Sentencing Reform Act. The applicable guideline prescribed a sentencing range of 121 to 151 months. The district court permitted a downward departure to the statutory minimum and imposed a sentence of 120 months followed by a five-year term of supervised release. Her motion for an extension of time to file a notice of appeal was allowed by the district court. Appellant’s Appendix (App.) at 2a. We have appellate jurisdiction over her appeal under 28 U.S.C.A. § 1291 (West Supp.1991). The district court had subject matter jurisdiction under 18 U.S.C.A. § 3231 (West 1985). Tannis’s counsel filed a brief pursuant to the decision of the United States Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In accordance with Anders, counsel stated his opinion that Tannis’s appeal does not present any non-frivolous issues for review. However, as Anders requires, he went on to raise and discuss two possible questions. The first concerned the plea proceeding and the second concerned the sentencing process. After counsel filed the Anders brief in support of his motion for leave to withdraw, a motions panel of this Court granted Tannis an opportunity to file a pro se brief. When she failed to do so within the time set, she was granted an extension. Tannis did not file a pro se brief within the time set by the final extension, which expired on April 15, 1991. She has filed nothing in support of her argument to date. In accordance with Anders, we have independently considered the matters counsel raises in his Anders brief and also independently examined the record to determine whether it presents any non-frivolous issue that would justify our review. Having found" }, { "docid": "22677619", "title": "", "text": "PREGERSON, District Judge: Appointed counsel for Francisco Aguilar-Muniz has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that there are no meritorious issues for appeal and requesting leave to withdraw as counsel. Although notified of his right to respond to counsel’s motion to withdraw, appellant has failed to respond. After consideration of the issues identified by counsel, and after an independent review of the record, we grant the motion to withdraw and affirm the decision below. On November 9, 1995, Francisco Aguilar-Muniz (“Aguilar-Muniz”) was indicted along with four co-defendants for conspiracy to manufacture methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1). On June 4, 1996, Aguilar-Muniz waived indictment and pleaded guilty to a superseding information charging conspiracy to manufacture methamphetamine. On June 27, 1996, the government moved to be relieved of its obligations under Aguilar-Muniz’s plea agreement on the grounds that Aguilar-Muniz had not testified truthfully at the trial of co-defendant Jose Luis Buenrostro. On August 15, 1996, Aguilar-Muniz waived his right to a hearing on the government’s motion to withdraw the previous plea agreement, and pleaded guilty to a new superseding indictment charging possession of pseu-doephedrine with knowledge that it would be used to manufacture methamphetamine in violation of 21 U.S.C. § 841(d)(2) and use of a telephone to facilitate conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 843(b). Aguilar-Muniz was sentenced on October 30, 1996 to the statutory maximum of fourteen years imprisonment. Aguilar-Muniz timely noticed this appeal on November 5, 1996. Attorney Kent Verne Anderson was appointed counsel on November 6, 1996. Anderson now moves to withdraw, and files a brief pursuant to Anders, asserting that there are no non-frivolous issues for appeal. As required by Anders, counsel has filed a brief identifying possible issues for appeal. As part of the plea agreement, Aguilar-Muniz had waived the right to appeal his conviction. Counsel has identified two possible issues regarding the waiver of appeal: (1) Did the district court comply with Rule 11 of the Federal Rules of Criminal Procedure in taking the" }, { "docid": "22263845", "title": "", "text": "plea, Mendez filed a formal motion to withdraw his guilty plea. Mendez contended that he was innocent and that his plea was not voluntary. In addition, on October 10, 1996,- Mendez’s new attorney moved for production of 16 tape recordings of Mendez’s telephone conversations from the Metropolitan Correction Center, which the government had obtained and had already made available to Mendez’s previous attorney before Mendez’s guilty plea. Judge Keenan denied the motion and sentenced Mendez to 15 years’ imprisonment Lopez In August 1995, Lopez pled guilty to conspiracy to murder in aid of racketeering activity, conspiracy to assault with a dangerous weapon in aid of racketeering activity and possession with intent to distribute a controlled substance. At the plea allocution, the district court ensured that Lopez understood the charges against him and had reviewed the plea agreement with his attorney. In March 1996, Lopez moved to withdraw his guilty plea claiming that he had been pressured into pleading guilty by his family and attorney. The district court denied the motion and sentenced Lopez to 17 years’ imprisonment. Mendez, Grullon, Ramos and Lopez now appeal. Mendez and Grullon argue that the district court abused its discretion when it denied their motions to withdraw their guilty pleas. Ramos claims that the statute under which he was convicted, 18 U.S.C. § 1959, violates the Commerce Clause. Lopez’s attorney filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) asking to be relieved as counsel and arguing that Lopez’s case presents no nonfrivolous issues on appeal. Lopez has not filed a pro se brief in support of his appeal. The government seeks summary af-firmance of Lopez’s conviction. DISCUSSION A. Grullon’s and Mendez’s Motions - to Withdraw Guilty Pleas Motions to withdraw guilty pleas before sentencing are governed by Federal Rule of Criminal Procedure 32(e). See United States v. Reyes, 13 F.3d 638, 639 (2d Cir.1994). Although Rule 32(e) provides that a defendant may move to withdraw a guilty plea upon a showing of a “fair and just reason,” it is basic that “[a] defendant has no" }, { "docid": "22540513", "title": "", "text": "ROBERT M. PARKER, Circuit Judge: Counsel for Tracy Joseph Wagner filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel now asks that he be allowed to withdraw. Wagner similarly requests that counsel be allowed to withdraw so that he can proceed pro se on appeal. Wagner further requests that counsel’s Anders brief be stricken. In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Supreme Court held that after a conscientious examination of the record, if appointed counsel finds a criminal defendant’s case to be wholly frivolous, he or she should so advise the court and request permission to withdraw. This request must be accompanied by a brief referring to anything in the record that might arguably support the appeal. 386 U.S. at 744, 87 S.Ct. 1396. The court further required that a copy of the brief be furnished to the defendant so as to allow him an oppor tunity to raise any issues he so chooses. Id. The Anders decision reconciled the conflicting interests of indigent appellants in zealous representation and the judicial system in the efficient administration of justice. Anders and its progeny discuss the adequacy of the brief which the appointed counsel must file in support of the motion to withdraw. Very little discussion exists, however, about the role of the courts in reviewing Anders briefs and requests for withdrawal of counsel. See, e.g., United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996) (noting dearth of case law and holding that “if the brief explains the nature of the ease and fully and intelligently discusses the issues that the type of case might be expected to involve, we shall not conduct an independent top-to-bottom review of the record in the district court to determine whether a more resourceful or ingenious lawyer might have found additional issues that may not be frivolous.”). This case presents a recurring issue: once appointed counsel has filed an Anders brief, should the indigent defendant be allowed to reject his attorney, have the Anders brief stricken, and" }, { "docid": "7455103", "title": "", "text": "should include, but are not limited to, the issues discussed in the CPC. We note that Simon has raised other issues before us, such as ineffective assistance of counsel claims, that counsel may also choose to address upon remand. We express no view on the merits of any of the issues raised. III. CONCLUSION For the reasons set forth above, we will vacate the order of the Appellate Division and remand the case for further proceedings in accordance with this opinion. . The Virgin Islands Legislature statutorily changed the name of the Territorial Court to the Superior Court, effective January 1, 2005. . Rule 14(b) provides that an appeal of the denial of a habeas petition may not proceed in the Appellate Division without a CPC. . Third Circuit Local Appellate Rule 109.2(a) states: “Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant trial counsel's Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, it will discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order supplemental briefing.”" }, { "docid": "22263846", "title": "", "text": "years’ imprisonment. Mendez, Grullon, Ramos and Lopez now appeal. Mendez and Grullon argue that the district court abused its discretion when it denied their motions to withdraw their guilty pleas. Ramos claims that the statute under which he was convicted, 18 U.S.C. § 1959, violates the Commerce Clause. Lopez’s attorney filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) asking to be relieved as counsel and arguing that Lopez’s case presents no nonfrivolous issues on appeal. Lopez has not filed a pro se brief in support of his appeal. The government seeks summary af-firmance of Lopez’s conviction. DISCUSSION A. Grullon’s and Mendez’s Motions - to Withdraw Guilty Pleas Motions to withdraw guilty pleas before sentencing are governed by Federal Rule of Criminal Procedure 32(e). See United States v. Reyes, 13 F.3d 638, 639 (2d Cir.1994). Although Rule 32(e) provides that a defendant may move to withdraw a guilty plea upon a showing of a “fair and just reason,” it is basic that “[a] defendant has no absolute right to withdraw his guilty plea.” United States v. Williams, 23 F.3d 629, 634 (2d Cir.1994). The defendant bears the burden of demonstrating valid grounds for relief. See United States v. Maher, 108 F.3d 1513, 1529 (2d Cir.1997). In determining whether a “fair and just reason” exists to justify withdrawal of a guilty plea, a district court should consider: (1) the time lapse between the plea and the motion; and (2) whether the government would be prejudiced by a withdrawal of the plea. Fed.R.Crim.P. 32(e), Advisory Committee Notes. However, the government need not demonstrate prejudice where the defendant fails to show sufficient grounds to justify withdrawal of the plea. Maher, 108 F.3d at 1529. To get permission to withdraw a guilty plea, a defendant must raise a significant question about the voluntariness of the original plea. See Id. A defendant’s bald statements that simply contradict what he said at his plea allocution are not sufficient grounds to withdraw the guilty plea. Id. The decision to allow a guilty plea to be withdrawn is committed" }, { "docid": "23067912", "title": "", "text": "In considering defendant’s appeal, we address whether Fed.R.Civ.P. 15(c) allows his amended motion to relate back to the date of his original filing. Because this presents a question of first impression in this circuit, we conclude that the issue merits further judicial consideration, and we grant a certificate of appealability. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 2253(a) and 28 U.S.C. § 1291, and we affirm. I. Defendant pled guilty to one count of possession with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), 841(b)(1)(C), and 18 U.S.C. § 2, and one count of conspiracy to commit the same in violation of 21 U.S.C. § 846. The sentencing court found defendant to be a career offender and sentenced him to 151 months on the conspiracy count and sixty months on the possession count, to be served concurrently. Defendant timely filed a pro se notice of appeal raising the issue of the sentencing court’s denial of a downward departure based on his ill health. Defendant’s counsel also filed a notice of appeal, a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and a motion to withdraw. In his response, defendant asserted several ineffective assistance of trial counsel claims. This court granted counsel’s request to withdraw, dismissed the appeal for lack of jurisdiction over the sentencing court’s refusal to depart downward, and expressly advised defendant to bring his ineffective assistance of counsel claims in a § 2255 motion. Defendant timely filed a pro se § 2255 motion, asserting that the sentencing court erred in sentencing him on a count on which he had been found not guilty, and that the pre-sentence report inappropriately used a 1995 escape charge to enhance his criminal history category. After the expiration of his one-year limitations period under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and while his first motion was still pending, defendant filed a supplemental motion asserting a number of ineffective assistance of counsel claims. The magistrate judge found the claims in defendant’s first motion to" }, { "docid": "23699888", "title": "", "text": "RICHARD S. ARNOLD, Circuit Judge. After Morrison pleaded guilty to a felon-in-possession charge, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2), the District Court sentenced him to three years and one month imprisonment, and three years supervised release. Appellate counsel moved to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and we granted Morrison permission to file a pro se supplemental brief, which he has done. The government has filed a motion to dismiss Morrison’s appeal, arguing that he waived his right to appeal. We grant the government’s motion to dismiss. Morrison’s written plea agreement contains the following language: WAIVER OF DEFENSES AND APPEAL RIGHTS: Defendant hereby waives any right to raise and/or appeal and/or file any post-conviction writs of habeas corpus or coram nobis concerning any and all motions, defenses, probable cause determinations, and objections which defendant has asserted or could assert to this prosecution and to the Court’s entry of judgment against defendant and imposition of sentence under 18 U.S.C. § 3742 (sentence appeals). Both the defendant and the United States reserve the right to appeal a departure from a guideline sentence. This appeal waiver may be enforced if Morrison made a knowing and voluntary decision to forego his right to appeal. See United States v. Michelsen, 141 F.3d 867, 871 (8th Cir.), cert. denied, - U.S. -, 119 S.Ct. 363, 142 L.Ed.2d 299 (1998). Although Morrison argues that his plea was not knowing and voluntary, he has not made an adequate showing on this issue. Our review of the plea-hearing transcript convinces us that Morrison understood his rights and made a voluntary and intelligent choice among alternative courses of action. See United States v. Gray, 152 F.3d 816, 819 (8th Cir.1998) (whether guilty plea was knowing and voluntary is mixed question of fact and law that this court reviews de novo), cert. denied, - U.S. -, 119 S.Ct. 1091, 143 L.Ed.2d 91 (1999); United States v. Vest, 125 F.3d 676, 679 (8th Cir.1997). Moreover, the appeal-waiver language is clear; the Court brought the appeal waiver to Morrison’s attention" }, { "docid": "22195627", "title": "", "text": "wanted to “withdraw his plea prior to sentencing but confusion in translation and attorney communication prevented this from being raised.” The trial court certified the issues for appeal. Despite the probable cause issue certification, Delgado’s new appointed counsel for appeal filed a brief that did not raise any issues or ask for reversal on any ground, but simply invited the California Court of Appeal to conduct an independent review of the record. Delgado filed his own supplemental brief alleging ineffective assistance of trial counsel. The California Court of Appeal affirmed the conviction without opinion. Delgado’s pro per petition before the Supreme Court of California was also denied without opinion. Delgado then filed a petition for a writ of habeas corpus in the Supreme Court of California, alleging ineffective assistance of both trial and appellate counsel. His petition was denied in a one sentence order. After properly exhausting his state remedies, see Delgado v. Lewis, 168 F.3d 1148, 1151, Delgado then filed a petition for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2254, alleging ineffective assistance of appellate counsel. The district court granted the petition. We affirmed the district court in Delgado I. II One of the bases for our holding in Delgado I that Delgado received ineffective assistance of appellate counsel was his counsel’s failure to comply with the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) by filing what is known in California as a Wende brief. See People v. Wende, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 (1979). We had previously held that the Wende procedure’s failure to follow the requirements of Anders rendered the Wende procedure fundamentally flawed, and therefore resulted in ineffective assistance of appellate counsel per se. See Davis v. Kramer, 167 F.3d 494, 496-98 (9th Cir.1999). Thus, under circuit precedent applicable at the time, Delgado’s counsel ineffectively assisted Delgado as a matter of law. In Smith, the Supreme Court upheld California’s Wende procedure as constitutionally adequate. See 120 S.Ct. at 763. Thus, on remand we must examine Delgado’s" }, { "docid": "1434451", "title": "", "text": "McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). “Once a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant’s acquiescence, at least until the defendant expressly and unambiguously ... requests] that ... counsel be silenced.” Id. Even absent our longstanding prohibition on “hybrid representation,” we still could not consider Turner’s pro se filings because we are bound by our local rules, which state: Except in eases in which counsel has filed a motion under L.A.R. 109.2 to withdraw under Anders v. California, 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] (1967), parties represented by counsel may not file a brief pro se. If a party sends a pro se brief to the court, the clerk will forward the brief to the party’s attorney of record, with notice to the pro se party. Counsel may choose to include the arguments in his or her brief or may in the unusual case file a motion to file a supplemental brief, if appropriate. 3d Cir. L.A.R. 31.3. Consistent with this rule, we have stated repeatedly in not precedential opinions that we consider pro se briefs only in situations governed by Anders. See, e.g., United States v. McCoy, 272 Fed.Appx. 212, 215 (3d Cir.2008); United States v. Reyes, 271 Fed.Appx. 217, 218 (3d Cir.2008); United States v. Awala, 260 Fed.Appx. 469, 471-72 (3d Cir.2008); United States v. Lott, 240 Fed.Appx. 992, 995 (3d Cir.2007). Although in the past we considered counseled parties’ pro se filings in “unusual circumstances,” see United States v. Salerno, 61 F.3d 214, 218 n. 2 (3d Cir.1995); United States v. Essig, 10 F.3d 968, 969 (3d Cir.1994), Local Appellate Rule 31.3 should have abrogated that practice when it became effective in 2002. Counsel for Turner argue that Local Appellate Rule 31.3 is ambiguous. In their view, “[c]ounsel may choose to include the arguments [of the pro se defendant] in his or her brief or may in the unusual case file a motion to file a supplemental brief [authored" } ]

[ { "docid": "23503685", "title": "", "text": "698 F.2d 221, 223 (4th Cir.1983) (segregated confinement is not an arrest for purposes of constitutional protections); United States v. Clardy, 540 F.2d 439, 441 (9th Cir.) (placement in segregated confinement for five months until indictment not an arrest for speedy trial purposes), cert. denied 429 U.S. 963, 97 S.Ct. 391, 50 L.Ed.2d 331 (1976). On the other hand, the Supreme Court has suggested in dicta that a major change in conditions of confinement, such as solitary isolation, may implicate liberty interests for which minimum procedural safeguards are required by due process. See Wolff v. McDonnell, 418 U.S. 539, 571 n. 19, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Even assuming that Amrine’s detention by Brooks and Hemeyer on October 18, 1985 was an arrest, we find that it was supported by arguable probable cause. A warrantless arrest is consistent with the Fourth Amendment if it is supported by probable cause. See U.S. Const, amend. IV; United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). Probable cause exists when the totality of the circumstances shows that a prudent person would believe that the arrestee has committed a crime. See Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); United States v. Washington, 109 F.3d 459, 465 (8th Cir.1997). Exculpatory evidence is therefore relevant to whether an officer has probable cause. Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir.1999). Officers are not required to conduct a “mini-trial” before arrest, but probable cause “does not exist when a ‘minimal further investigation’ would have exonerated the suspect.” Id. at 650 (citations omitted). Officers may also be entitled to qualified immunity if they arrest a suspect under the mistaken belief that they have probable cause to do so, provided that the mistake is objectively reasonable. Hunter v. Bryant, 502 U.S. 224, 228-29, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam). We have characterized this inquiry as whether the officers had “arguable probable cause.” See Smithson v. Aldrich, 235 F.3d 1058, 1062 (8th Cir.2000). On the evening of October 18, 1985, the inculpatory" } ]

[ { "docid": "16438031", "title": "", "text": "concede that the court accurately sets forth the elements of misdemeanor conduct under the City of Minneapolis ordinances and the Minnesota state statute. I also concede that probable cause for such offenses is factually “determined ‘at the moment [an] arrest [is] made,’ [and] any later developed facts are irrelevant to the probable cause analysis for an arrest.” Amrine v. Brooks, 522 F,3d 823, 832 (8th Cir. 2008) (quoting United States v. Rivera, 370 F.3d 730, 733 (8th Cir. 2004)). In this case, the arrest at issue occurred at the moment the physical, wristlock custody of Gilmore commenced in The News Room restaurant. Thus, at that crucial time, defendant police officers had only facts related by the police dispatcher and those obtained during their brief encounter with Glazer on Nicollet Mall, At that point, there was neither probable cause nor “arguable” probable cause established, and any Minneapolis ordinance or state statutory verbiage to the contrary would violate Gilmore’s First Amendment rights. Officer Dubuc was informed by Gilmore that he possessed no probable cause to arrest. While probable cause is a question of law, it must be fundamentally based upon factual episodes emanating from specific unlawful actions. Here, Gilmore’s heated public discussions concerning Ms. Hirsi Ali, coupled with “taking photographs” on a public street and rejecting Glazer’s demand that he “walk away,” were all acts fully protected by the First Amendment’s Free Speech and Assembly Clauses. In a supplemental report Officer Dubuc stated that Gilmore may have been intoxicated, was “mad” and would not communicate with him about the happenings at Nicollet Mall. Such statements were, of course, superfluous concerning the earlier arrest. Gilmore, believing he had been arrested and incarcerated in the police car without probable cause, had every right under the Fifth Amendment to remain silent. It must also be noted, as does the court . itself, that Gilmore was never charged with intoxication, only disorderly conduct and obstruction of legal process. In the face of these questions of fact and law, the court contends that the officers, even if ultimately proven wrong, are nonetheless' entitled to a qualified immunity" }, { "docid": "22079653", "title": "", "text": "the Fourth Amendment, arrest someone without a warrant if the officer has probable cause to believe the person has committed a crime. Baribeau v. City of Minneapolis, 596 F.3d 465, 474 (8th Cir.2010) (citing Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001)). Probable cause exists “when the totality of the circumstances at'the time of the arrest are sufficient to lead a reasonable person to believe that the defendant has committed or is committing an offense.” Ulrich v. Pope Cnty., 715 F.3d 1054, 1059 (8th Cir.2013) (quotation omitted). To receive qualified immunity, however, a police officer need only have “arguable probable cause” to make the arrest. Bernini v. City of St. Paul, 665 F.3d 997, 1003 (8th Cir.2012). “Arguable probable cause exists even where an officer mistakenly arrests a suspect believing it is based in probable cause if the mistake is objectively reasonable.” Ulrich, 715 F.3d at 1059 (quotation omitted). Minnesota’s criminal trespass statute reads: “A person is guilty of a misdemean- or if a person intentionally ... trespasses on the premises of another and, without claim of right, refuses to depart from the premises on demand of the lawful possessor.” Minn.Stat. § 609.605, subd. 1(b)(3). The Minnesota Court of Appeals has explained that a refusal to depart is a necessary element of Minnesota’s trespass statute. State v. Zimmer, 478 N.W.2d 764, 768 (Minn.Ct.App.1991) (finding that as a matter of law an individual could not be guilty of trespass when he immediately left the building and went to his car upon being asked to leave). Under this statute, a refusal to depart does not have to be verbal or protracted. See State v. Quinnell, 277 Minn. 63, 151 N.W.2d 598, 602 (1967) (upholding trespass conviction when a police officer told a man to leave, but the man “said nothing in reply,” and walked back and forth for three minutes); see also Merriam-Webster Online Dictionary, available at http://www.merriam-webster. com/dictionary/refusal (last visited May 30, 2014) (defining “refusal” as “an act of saying or showing that you will not do, give, or accept something” (emphasis" }, { "docid": "20253809", "title": "", "text": "these later developments informed the officers’ exercise of discretion about how to respond to the preexisting probable cause. An arguably poor exercise of discretion, however, must be distinguished from a violation of clearly established rights under the Fourth Amendment. The district court properly dismissed the plaintiffs’ claim alleging an unconstitutional seizure. The existence of probable cause to believe that the plaintiffs engaged in disorderly conduct was constitutionally sufficient to justify their detention between the arrests on Saturday night and their release on Monday. See County of Riverside v. McLaughlin, 500 U.S. 44, 56-57, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). Thus, the district court did not err in granting summary judgment in favor of the officers on the plaintiffs’ Fourth Amendment claim. III. I concur in the majority’s judgment rejecting plaintiffs’ claim that they were seized in retaliation for exercising their First Amendment right of free speech. To prevail on their claim of retaliation, the plaintiffs must show an absence of probable cause for their seizures. Cross v. Mokwa, 547 F.3d 890, 896-97 (8th Cir.2008); Smithson v. Aldrich, 235 F.3d 1058, 1063 (8th Cir.2000). Because there was probable cause to believe that the plaintiffs committed the offense of disorderly conduct under Minnesota law, summary judgment was appropriate on the plaintiffs’ First Amendment retaliation claim. I also concur in the judgment affirming the district court’s dismissal of the plaintiffs’ claim that the officers committed the state-law tort of false imprisonment. Under Minnesota law, “if an arrest is made without proper legal authority, it is a false arrest, and so false imprisonment.” Lundeen v. Renteria, 302 Minn. 142, 224 N.W.2d 132, 135 (1974). An arrest for a misdemeanor conforms to Minnesota law as long as police officers, in their presence, have observed conduct giving rise to probable cause to believe that the offense was committed. Johnson v. Morris, 453 N.W.2d 31, 36 (Minn.1990); Henry v. Comm’r of Pub. Safety, 357 N.W.2d 121, 122-23 (Minn.Ct.App.1984); see Minn.Stat. § 629.34, subd. 1(c)(1). The plaintiffs argue that their arrests were made without proper legal authority because probable cause did not exist to believe that they" }, { "docid": "16437999", "title": "", "text": "action unless the official’s conduct violates a clearly established constitutional or statutory right of which a reasonable person would have known.” Snider v. City of Cape Girardeau, 752 F.3d 1149, 1155 (8th Cir. 2014) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “To overcome a defendant’s claim of qualified immunity, the burden falls on [Gilmore] to show: ‘(1) the facts, viewed in the light most favorable to [Gilmore], demonstrate the deprivation of a constitutional right; and (2) the right was clearly established at the time of the deprivation.’ ” Id. (quoting Baribeau v. City of Minneapolis, 596 F.3d 465, 474 (8th Cir. 2010)). Gilmore alleges first that his arrest was not supported by probable cause. “A warrantless arrest is consistent with the Fourth Amendment if it is supported by probable cause, and an officer is entitled to qualified immunity if there is at least ‘arguable probable cause.’ ” Borgman v. Kedley, 646 F.3d 518, 522-23 (8th Cir. 2011) (quoting Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005)). A law enforcement officer has probable cause “when the totality of the circumstances at the time of the arrest ‘are sufficient to lead a reasonable person to believe that the defendant has committed or is committing an offense.’ ” Id. at 523 (quoting Fisher v. Wal-Mart Stores, Inc., 619 F.3d 811, 816 (8th Cir. 2010)). If an officer arrests a suspect, under -the mistaken belief that there is probable cause, arguable probable cause exists “if the mistake is ‘objectively reasonable.’ ” Id, (quoting Amrine v. Brooks, 522 F.3d 823, 832 (8th Cir. 2008)). Gilmore was arrested for disorderly conduct and obstructing legal process. Both are misdemeanors under Minnesota law. See Minneapolis, Minn., Code of Ordinances , Title 15 . § 385.90; Minn. Stat. § 609.72 subd. 1(3); Minn. Stat. § 609.50, subd. 1(1). Under Minneapolis’s local ordinance, a person may be arrested for disorderly conduct when he “engage[s] in, or prepare[s], attempt[s], offer[s] or threaten[s] to engage in, or assist[s] or conspire[s] with another to engage in, or congregated] because of," }, { "docid": "11672486", "title": "", "text": "over a year after that deadline, and well after the close of discovery. The Court will not permit Binion to circumvent the scheduling order in this manner. The Court holds that Binion may not pursue any constitutional claims against the City. D. Unreasonable Seizure Binion claims that she was arrested without probable cause in violation of the Fourth Amendment. As a general matter, the Fourth Amendment requires that a police officer making an arrest have a warrant or probable cause. “Probable cause to conduct a warrantless arrest exists when at the moment of arrest police have knowledge of facts and circumstances grounded in reasonably trustworthy information sufficient to warrant a belief by a prudent person that an offense has been or is being committed by the person to be arrested.” United States v. Hartje, 251 F.3d 771, 775 (8th Cir.2001). If a police officer does not, in fact, have actual probable cause to arrest a suspect, he is nevertheless entitled to qualified immunity if he has “arguable” probable cause — that is, if he reasonably (but wrongly) believes that he had probable cause. “In the wrongful arrest context, officers are entitled to qualified immunity ‘if they arrest a suspect under the mistaken belief that they have probable cause to do so, provided that the mistake is objectively reasonable.’ ” Baribeau v. City of Minneapolis, 596 F.3d 465, 478 (8th Cir. 2010) (quoting Armine v. Brooks, 522 F.3d 823, 832 (8th Cir.2008)). Binion was booked for “conspiracy to commit riot.” Nickitas Deck Ex. 6. More precisely, Binion was booked for conspiracy to commit second-degree riot. Under Minnesota law, second-degree riot is defined as follows: When three or more persons assembled disturb the public peace by an intentional act or threat of unlawful force or violence to person or property, each participant who is armed with a dangerous weapon or knows that any other participant is armed with a dangerous weapon is guilty of riot second degree and may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both." }, { "docid": "486880", "title": "", "text": "claims against the officers in their individual capacities based on alleged violations of her Fourth and Fourteenth Amendment rights to be free from false arrest and unreasonable seizure. She also asserted, pursuant to state law, a false-arrest claim against the City of Coral Springs. The district court granted summary judgment in favor of the City of Coral Springs because Storck failed to give timely notice to the City as required by Fla. Stat. § 768.28(6), and in favor of Officers Randolph and Caffray, after Storck conceded that she had no good-faith § 1983 claims against them. The district court granted summary judgment in favor of Officer McHugh on the basis of qualified immunity. The district court found, among other things, that McHugh reasonably could have believed that Storck was committing or was attempting to commit a violation of Fla. Stat. § 843.02 (providing that “[wjhoever shall resist, obstruct, or oppose any officer ... in the lawful execution of any legal duty ... shall be guilty of a misdemeanor of the first degree”), and that McHugh, at the very least, had arguable probable cause to arrest Storck for violating that statute. Thus, the district court determined that McHugh was entitled to qualified immunity: The Court finds, based upon the totality of the circumstances and the collective knowledge of the officers assembled at her residence, that Officer McHugh enjoys qualified immunity as to Ms. Storck’s claim of false arrest. Even after considering the facts in the light most favorable to Ms. Storck, the Court finds that Ms. Storck’s undisputed lack of cooperation with the officers is sufficient to satisfy the minimal standard of arguable probable cause. In short, Ms. Storck failed to carry her burden of demonstrating that no reasonable officer could have found probable cause under the totality of the circumstances. This appeal followed. II. On appeal, Storck argues essentially that significant factual disputes exist on the issue of whether Officer McHugh had arguable probable cause, thus preventing the district court from granting summary judgment based on qualified immunity. Storck urges that arguable probable cause did not exist to arrest her" }, { "docid": "18028892", "title": "", "text": "them. “[Q]ualified immunity is an affirmative defense [that] -will be upheld on a 12(b)(6) motion only when the immunity is established on the face of the complaint.” Weaver v. Clarke, 45 F.3d 1253, 1255 (8th Cir.1995) (internal citation omitted). “Qualified immunity shields a public official from suit for civil damages when his ‘conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Bernini v. City of St. Paul, 665 F.3d 997, 1002 (8th Cir.2012) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). A police officer is therefore entitled to qualified immunity unless the evidence establishes (1) that a plaintiffs constitutional rights have been violated, and (2) those rights were so clearly established at the time of the violation that a reasonable officer would have known that his actions were unlawful. Id. Here, we conclude that Mitchell and Thesing are entitled to qualified immunity on Ulrich’s Fourth Amendment claim. We find that the arresting deputies had at least arguable probable cause to arrest Ulrich for the crime of knowingly violating a valid restraining order, pursuant to Minn.Stat. Ann. § 609.748 Subd. 6 (2012). “A warrantless arrest is consistent with the Fourth Amendment if it is supported by probable cause, and an officer is entitled to qualified immunity if there is at least ‘arguable probable cause.’ ” Borgman v. Kedley, 646 F.3d 518, 522-23 (8th Cir.2011) (quoting Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir.2005)). Probable cause to make a war-rantless arrest exists “when the totality of the circumstances at the time of the arrest are sufficient to lead a reasonable person to believe that the defendant has committed or is committing an offense.” Id. (quotation omitted). “Arguable probable cause exists even where an officer mistakenly arrests a suspect believing it is based in probable cause if the mistake is ‘objectively reasonable.’ ” Id. at 523 (quoting Amrine v. Brooks, 522 F.3d 823, 832 (8th Cir.2008)). The probable cause standard inherently allows room for reasonable mistakes by a reasonable person, but the" }, { "docid": "15678273", "title": "", "text": "claims. Both Coffins challenge the Deputies’ entry into the garage; only Ms. Coffin challenges her arrest. We address first Ms. Coffin’s claim for an unlawful arrest. Then we address whether the entry into the garage violated the Coffin’s Fourth Amendment rights. Because we conclude that the entry did violate Fourth Amendment rights, we address finally whether there was a violation of clearly established Fourth Amendment law. II. Ms. Coffin’s Claim for Unlawful Arrest Deputies are entitled to qualified immunity on claims of false arrest so long as they had probable cause or arguable probable cause for the arrest. See Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002). We easily conclude that the Deputies had ample probable cause to arrest Ms. Coffin for misdemeanor obstruction of justice. At the very least, they had arguable probable cause for arrest, which is all that is required for qualified immunity purposes. Id. at 1195. The difficulty with the arrest in this case turns not on the probable cause question, but on the question of whether the officers were entitled to enter the garage in order to make that warrantless arrest. See Minnesota v. Olson, 495 U.S. 91, 95, 110 S.Ct. 1684, 1687, 109 L.Ed.2d 85 (1990) (“It was held in Payton v. New York that a suspect should not be arrested in his house without an arrest warrant, even though there is probable cause to arrest him.”) (citation omitted); United States v. Edmondson, 791 F.2d 1512, 1515 (11th Cir.1986) (“A finding of probable cause alone ... does not justify a warrantless arrest at a suspect’s home.”). For the reasons discussed below, we hold that it was not clearly established that the garage entry here would violate the Fourth Amendment, and because the Deputies had probable cause to arrest Ms. Coffin for obstruction, they are entitled to qualified immunity on this claim. Probable cause to arrest exists under both federal and Florida law when an arrest is “objectively reasonable based on the totality of the circumstances.” Lee, 284 F.3d at 1195. “This standard is met when the facts and circumstances within the officer’s" }, { "docid": "21623150", "title": "", "text": "a broad general proposition.” Saucier, 533 U.S. at 201, 121 S.Ct. 2151. The court grants qualified immunity as to this claim. d. Seizure of Persons — Count TV In Count IV, Plaintiffs claim that Defendants Shanks and Hofer seized them in violation of the Fourth Amendment by arresting them without probable cause. Defendants respond that they had probable cause to detain Plaintiffs, invalidating Count TV. Alternatively, Defendants argue that a reasonable officer would have believed he had probable cause, entitling them to qualified immunity. “Unconstitutional arrests are unreasonable seizures of the person that violate the Fourth and Fourteenth Amendments.” Rose v. Mitchell, 443 U.S. 545, 577, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979). Whether the arrest, as a warrantless arrest, amounts to an unreasonable seizure, and thus a constitutional violation, turns on whether there was probable cause to believe that the plaintiff had committed a crime. Thompson v. City of Lawrence, 58 F.3d 1511, 1515 (10th Cir.1995). “Under a § 1983 claim of unlawful arrest, [defendant police officers lose their shield of qualified immunity only if they could not have believed that [the plaintiffs] arrest was based on probable cause.” Id. (citation omitted). The critical inquiry is not whether the plaintiff actually committed the crime at issue, but whether the police had probable cause to believe that he did. Defendants contend that they had probable cause to believe Plaintiffs were violating K.S.A. § 21-3808(a) and City of Lawrence ordinance § 14-502 at the time of their arrest. K.S.A. § 21-3808(a) makes it illegal to obstruct legal process or official duty: (a) Obstructing legal process or official duty is knowingly and intentionally obstructing, resisting or opposing any person authorized by law to serve process in the service or execution or in the attempt to serve or execute any writ, warrant, process or order of a court, or in the discharge of any official duty. The municipal ordinance has similar language: “If any person shall knowingly or willfully obstruct, resist or oppose any police officer or any other ministerial officer while such officer is engaged in the discharge of his or her" }, { "docid": "22079666", "title": "", "text": "Id. (quotation omitted); see also Hartman, 547 U.S. at 256, 126 S.Ct. 1695 (“[W]hen nonretaliatory grounds are in fact insufficient to provoke the adverse consequences, we have held that retaliation is subject to recovery as the but-for cause of official action offending the Constitution.”). In retaliatory arrest cases, we have identified a fourth prong: lack of probable cause or arguable probable cause. Galarnyk v. Fraser, 687 F.3d 1070, 1076 (8th Cir.2012) (‘“Lack of probable cause is a necessary element of a First Amendment retaliatory arrest claim.” (quoting McCabe v. Parker, 608 F.3d 1068, 1075 (8th Cir.2010))); McCabe, 608 F.3d at 1078-79 (finding plaintiffs’ First Amendment claims moot because secret service agent had arguable probable cause for their arrest); accord Redd v. City of Enterprise, 140 F.3d 1378, 1383 (11th Cir.1998). We agree that Kopp is entitled to qualified immunity on Peterson’s retaliatory arrest claim because, as detailed above, Kopp had at least arguable probable cause for the arrest. However, Peterson also claims that Kopp pepper sprayed him in retaliation for criticizing Kopp and asking for his badge number. The defendants do not deny that criticizing a police officer and asking for his badge number is protected speech under the First Amendment. Nor could they. “[CJriticism of public officials lies at the very core of speech protected by the First Amendment.” Naucke, 284 F.3d at 927. They also do not deny that pepper spraying someone in the face “would chill a person of ordinary firmness.” Revels, 382 F.3d at 876. Indeed, “ ‘[t]he effect on freedom of speech may be small, but since there is no justification for harassing people for exercising their constitutional rights it need not be great in order to be actionable.’ ” Garcia v. City of Trenton, 348 F.3d 726, 729 (8th Cir.2003) (quoting Bart v. Telford, 677 F.2d 622, 625 (7th Cir.1982) (holding that receiving several parking tickets totaling just $35.00 would chill a person of ordinary firmness)). The defendants argue instead that there is no evidence upon which a reasonable jury could conclude that Kopp pepper sprayed Peterson—even in part—because of his protected speech. Revels," }, { "docid": "13422507", "title": "", "text": "Cir.2003). While Tallen is not entitled to absolute immunity for providing legal advice during a police investigation, “the doctrine of qualified immunity remains available to him for that act,” just as it is available to the three Medina police officers. Id. We have concluded, however, that the officers had probable cause to arrest Greenman for traffic violations other than DWI. Therefore, even if Tallen advised the officers as Greenman alleges, the arrests were supported by probable cause; Tallen, therefore, is entitled to qualified immunity. IB. Due Process Violations Greenman next argues the second and third arrests and prosecutions violated his Fourteenth Amendment right to substantive due process because after the charges from his first arrest were dismissed, he had a constitutional expectation the Medina officers would not arrest and prosecute him again for DWI while operating a Segway. In other words, Greenman asserts a substantive due-process claim based on allegations of arrest and prosecution without probable cause. “Where a particular, [constitutional] amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” Smithson v. Aldrich, 235 F.3d 1058, 1064 (8th Cir.2000) (quoting Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994)). Greenman’s due-process claim alleges he was arrested and prosecuted without probable cause. This type of claim is properly addressed under a Fourth Amendment analysis. Id., at 1065. Having undergone the Fourth Amendment analysis in the preceding section, we conclude Greenman’s due-process claims fail. C. First Amendment Violations Greenman next asserts Officer Jessen arrested him in retaliation for engaging in protected speech, that is, for representing a client in an adverse court proceeding, thereby violating his First Amendment rights. “[T]he law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions ... for speaking out.” Kopp, 754 F.3d at 602 (quotation omitted). To prevail in an action for First Amendment retaliation, Greenman must show, “(1) he engaged in a protected activity," }, { "docid": "15412629", "title": "", "text": "they had no reason to disbelieve Scott’s information of there being a warrant for Hill. Instead, Hill claims Pavlak and Pierce violated his Constitutional rights when they refused to release him after they found out there was no warrant for his arrest. “Continuing to hold an individual in handcuffs once it has been determined that there was no lawful basis for the initial seizure is unlawful within the meaning of the Fourth Amendment.” Rogers v. Powell, 120 F.3d 446, 454 (3d Cir.1997). However, there may be a separate, independent basis for the continued detention. Id. The district court found, and Pavlak and Pierce now argue, they had probable cause to arrest Hill because his violent resistance to arrest was obstruction of legal process. We agree. Under Minnesota law, it is a misdemeanor if a person “(1) obstructs, hinders, or prevents the lawful execution of any legal process, civil or criminal, or apprehension of another on a charge or conviction of a criminal offense; [or] (2) obstructs, resists, or interferes with a peace officer while the officer is engaged in the performance of official duties .... ” Minn. State § 609.50. The undisputed facts show Officers Pavlak and Pierce had probable cause to believe Hill violated this law because they witnessed (and directly experienced) his resistance of arrest. Hill argues his resistance cannot be the basis of probable cause to believe he committed the crime of obstruction of legal process because he had a right to resist the arrest. In Minnesota, there is a right to resist an unjustified bodily attack (a.k.a. excessive force) by an officer, but there is no right to resist an unlawful search or arrest. State v. Kutchara, 350 N.W.2d 924, 927 (Minn.1984); State v. Wick, 331 N.W.2d 769, 771 (Minn.1983). Hill had a right to resist only if Pavlak’s and Pierce’s use of force was improper or excessive. However, Hill does not allege excessive force; and he admits he resisted arrest first, and then the officers became physical in response. He argues he was resisting only because he believed they had no right to arrest him" }, { "docid": "22502976", "title": "", "text": "2689, 61 L.Ed.2d 433 (1979). Even without actual probable cause, however, a police officer is entitled to qualified immunity if he had only \"arguable\" probable cause to arrest the plaintiff. See Lee v. Ferraro , 284 F.3d 1188, 1195 (11th Cir. 2002). Moreover, when an officer has arguable probable cause to arrest, he is entitled to qualified immunity both from Fourth Amendment claims for false arrest and from First Amendment claims stemming from the arrest. See Redd , 140 F.3d at 1383-84 (because officers had arguable probable cause to arrest plaintiff (a minister preaching loudly on the sidewalk) for disorderly conduct, the officers were entitled to qualified immunity from both plaintiff's First and Fourth Amendment claims). \"Arguable probable cause exists where reasonable officers in the same circumstances and possessing the same knowledge as the [defendant] could have believed that probable cause existed to arrest.\" Id. (emphasis added and internal quotation marks omitted). See also Wood v. Kesler , 323 F.3d 872, 878 (11th Cir. 2003) (\"[T]he inquiry is ... whether an officer reasonably could have believed that probable cause existed, in light of the information the officer possessed.\" (internal quotation marks omitted)). Whether an officer has probable cause or arguable probable cause, or neither, \"depends on the elements of the alleged crime and the operative fact pattern.\" Brown , 608 F.3d at 735. The rationale behind qualified immunity is that an officer who acts reasonably should not be held personally liable merely because it appears, in hindsight, that he might have made a mistake. The concept of arguable probable cause therefore allows for the possibility that an officer might \"reasonably but mistakenly conclude that probable cause is present.\" Id. Under this Court's governing precedent, such an officer likewise cannot be held personally liable for false arrest. Viewing the facts in the light most favorable to Plaintiff, we think Defendants had actual probable cause to arrest Plaintiff for violating Georgia's mask statute. But even assuming they lacked actual probable cause, these officers clearly had arguable probable cause. We explain why. The Georgia mask statute makes it a misdemeanor for a person" }, { "docid": "20253782", "title": "", "text": "evidence to suggest that the decision to arrest the plaintiffs for displaying simulated WMD was not based on an actual but overly exaggerated belief that the plaintiffs violated the WMD statute. Accordingly, we conclude that the defendants are entitled to qualified immunity and we grant summary judgment in favor of the defendants on the plaintiffs’ First Amendment retaliation claim. C. The plaintiffs’ final argument is that the officers committed the state-law tort of false imprisonment. The district court granted the defendants’ motion for summary judgment on this claim after finding that probable cause existed to arrest the plaintiffs for disorderly conduct, and that arguable probable cause existed to arrest and detain the plaintiffs for displaying simulated WMD. Baribeau, 578 F.Supp.2d at 1218-19. Since we have found that neither probable cause nor arguable probable cause existed to support the arrests and detentions, we must now analyze the plaintiffs’ false imprisonment claim. Under Minnesota law, “if an arrest is made without proper legal authority, it is a false arrest, and so false imprisonment.” Lundeen v. Renteria, 302 Minn. 142, 224 N.W.2d 132, 135 (1974). An arrest for a misdemeanor conforms to Minnesota law as long as police officers have observed conduct giving rise to probable cause to believe that the offense was committed. Johnson v. Morris, 453 N.W.2d 31, 36 (Minn.1990); Henry v. Comm’r of Public Safety, 357 N.W.2d 121, 122-23 (Minn.Ct.App.1984); see Minn.Stat. § 629.34, subd. 1(c)(1). In addition, police officers exercising judgment or discretion are entitled to official immunity unless they commit a “willful or malicious wrong.” State ex rel. Beaulieu v. City of Mounds View, 518 N.W.2d 567, 569 (Minn.1994). The “willful and malicious wrong” standard contemplates “whether the official has intentionally committed an act that he or she had reason to believe is prohibited.” Id. at 571. “This is a subjective standard, in contrast to the objective qualified immunity standard.” Nelson v. County of Wright, 162 F.3d 986, 991 (8th Cir.1998) (citing Elwood v. County of Rice, 423 N.W.2d 671, 676-79 (Minn.1988)). The plaintiffs allege that the defendants acted with subjective malice when they arrested and detained the" }, { "docid": "8898991", "title": "", "text": "Amendment claims against the officers pursuant to § 1983, one for false arrest and the other for malicious prosecution. We address each in turn. 1. False Arrest Joseph argues that the district court erred in concluding that qualified immunity bars his Fourth Amendment false arrest claim because the officers lacked probable cause to arrest him. “It is well established that a warrantless arrest without probable cause violates an individual’s constitutional rights under the Fourth and Fourteenth Amendments.” Marksmeier v. Davie, 622 F.3d 896, 900 (8th Cir.2010) (quoting Hannah v. City of Overland, Mo., 795 F.2d 1385, 1389 (8th Cir.1986)). An officer, however, is entitled to qualified immunity for a warrantless arrest if the arrest was supported by at least “arguable probable cause.” Borgman v. Kedley, 646 F.3d 518, 522-23 (8th Cir.2011) (quoting Walker, 414 F.3d at 992). Probable cause exists when “the totality of the circumstances at the time of the arrest ‘[is] sufficient to lead a reasonable person to believe that the defendant has committed or is committing an offense.’” Id. at 523 (quoting Fisher v. Wal-Mart Stores, Inc., 619 F.3d 811, 816 (8th Cir.2010)). “Arguable probable cause exists even where an officer mistakenly arrests a suspect believing it is based on probable cause if the mistake is ‘objectively reasonable.’ ” Id. (quoting Amrine v. Brooks, 522 F.3d 823, 832 (8th Cir.2008)). The fact that the person arrested is later found innocent is not material. Linn v. Garcia, 531 F.2d 855, 861 (8th Cir.1976). Whether a law enforcement officer had probable cause at the time of arrest is a question of law. Fisher, 619 F.3d at 816. Joseph contends that the officers did not have probable cause to arrest Joseph for first-degree assault, an offense requiring that, at minimum, a person “knowingly caused or attempt[] to cause serious physical injury to another person,” Mo.Rev.Stat. § 565.050. This is because, he argues, the totality of the circumstances did not establish that Joseph caused serious physical injury to Jones as the statute requires. Based on the undisputed parts of the record, however, we conclude that a reasonable officer could have believed" }, { "docid": "22079652", "title": "", "text": "officers, are entitled to qualified immunity, shielding them from liability, “unless the official’s conduct violated a clearly established constitutional or statutory right of which a reasonable official would have known.” Chambers, 641 F.3d at 904 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). We analyze qualified immunity in two steps: (1) “whether the facts that a plaintiff has alleged ... make out a violation of a constitutional right”; and (2) “whether the right at issue was ‘clearly established’ at the time of [the] defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). A. Fourth Amendment Unlawful Arrest Peterson first argues that Kopp violated his Fourth Amendment right to be free from unreasonable seizures by arresting him without probable cause. The parties agree that Peterson was seized, and under arrest, at the moment Kopp pulled Peterson off the bicycle lockers. A police officer may, consistent with the Fourth Amendment, arrest someone without a warrant if the officer has probable cause to believe the person has committed a crime. Baribeau v. City of Minneapolis, 596 F.3d 465, 474 (8th Cir.2010) (citing Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001)). Probable cause exists “when the totality of the circumstances at'the time of the arrest are sufficient to lead a reasonable person to believe that the defendant has committed or is committing an offense.” Ulrich v. Pope Cnty., 715 F.3d 1054, 1059 (8th Cir.2013) (quotation omitted). To receive qualified immunity, however, a police officer need only have “arguable probable cause” to make the arrest. Bernini v. City of St. Paul, 665 F.3d 997, 1003 (8th Cir.2012). “Arguable probable cause exists even where an officer mistakenly arrests a suspect believing it is based in probable cause if the mistake is objectively reasonable.” Ulrich, 715 F.3d at 1059 (quotation omitted). Minnesota’s criminal trespass statute reads: “A person is guilty of a misdemean- or if a person intentionally" }, { "docid": "13422506", "title": "", "text": "responsible for becoming and remaining aware of the actual and potential hazards then existing on the ... sidewalk and [to] use due care in operating the device.” See Minn.Stat. § 169.212.2(b). That Greenman failed field sobriety tests after being found on the sidewalk only adds to the “totality of circumstances” that would lead a reasonable person to determine Greenman was not operating his Segway with due care prior to crashing. See Kopp, 754 F.3d at 598 (quotation omitted). Sergeant Nelson had at least arguable probable cause to arrest Greenman for failing to operate his Segway with due care. Finally, Greenman argues Tal-len, the attorney who prosecuted him on behalf of Medina, should be held liable for the second and third prosecutions because he advised the officers to continue to arrest Greenman for DWI after having personally litigated this issue and lost. “[G]iving legal advice to police during an investigation strips a prosecutor of absolute immunity for that act because it is not a normal part of prosecutions.” Anderson v. Larson, 327 F.3d 762, 769 (8th Cir.2003). While Tallen is not entitled to absolute immunity for providing legal advice during a police investigation, “the doctrine of qualified immunity remains available to him for that act,” just as it is available to the three Medina police officers. Id. We have concluded, however, that the officers had probable cause to arrest Greenman for traffic violations other than DWI. Therefore, even if Tallen advised the officers as Greenman alleges, the arrests were supported by probable cause; Tallen, therefore, is entitled to qualified immunity. IB. Due Process Violations Greenman next argues the second and third arrests and prosecutions violated his Fourteenth Amendment right to substantive due process because after the charges from his first arrest were dismissed, he had a constitutional expectation the Medina officers would not arrest and prosecute him again for DWI while operating a Segway. In other words, Greenman asserts a substantive due-process claim based on allegations of arrest and prosecution without probable cause. “Where a particular, [constitutional] amendment provides an explicit textual source of constitutional protection against a particular sort of" }, { "docid": "13422508", "title": "", "text": "government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” Smithson v. Aldrich, 235 F.3d 1058, 1064 (8th Cir.2000) (quoting Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994)). Greenman’s due-process claim alleges he was arrested and prosecuted without probable cause. This type of claim is properly addressed under a Fourth Amendment analysis. Id., at 1065. Having undergone the Fourth Amendment analysis in the preceding section, we conclude Greenman’s due-process claims fail. C. First Amendment Violations Greenman next asserts Officer Jessen arrested him in retaliation for engaging in protected speech, that is, for representing a client in an adverse court proceeding, thereby violating his First Amendment rights. “[T]he law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions ... for speaking out.” Kopp, 754 F.3d at 602 (quotation omitted). To prevail in an action for First Amendment retaliation, Greenman must show, “(1) he engaged in a protected activity, (2) the government official took adverse action against him that would chill a person of ordinary firmness from continuing in the activity, and (3) the adverse action was motivated at least in part by the exercise of the protected activity.” Id. “In retaliatory arrest eases, we have identified a fourth prong: lack of probable cause or arguable probable cause.” Id. Because we conclude there was probable cause for each of the three arrests, we agree with the district court that the officers and prosecutor are entitled to qualified immunity on Greenman’s First Amendment retaliatory-arrest claims. D. Declaratory, and Injunctive Relief Greenman argues the district court erred by dismissing all of his federal constitutional claims without considering his claims for declaratory or injunctive relief. Greenman asked the district court to issue an order prohibiting Medina from again arresting him for operating his Seg-way while intoxicated. “The exercise of judicial power under Art. Ill of the Constitution depends on the existence .of a case or controversy.” Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45" }, { "docid": "22079657", "title": "", "text": "at police officers.”). Kopp claims he arrested Peterson for refusing to leave the bus stop, not for criticizing him or asking for his badge number. Even if Kopp had an alternative motive for arresting Peterson, Kopp’s “ ‘subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.’ ” Galarnyk v. Fraser, 687 F.3d 1070, 1075-76 (8th Cir.2012) (quoting Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004)). In other words, Kopp’s alleged motive for the arrest cannot vitiate an otherwise lawful arrest. See Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”); see also Foster v. Metro. Airports Comm’n, 914 F.2d 1076, 1080 (8th Cir.1990) (finding probable cause to arrest man for trespassing, despite officer also mistakenly thinking he could arrest him for verbally abusing the officer, because the protected speech was not the only basis justifying the arrest). As discussed above, it was objectively reasonable for Kopp to believe Peterson was refusing to leave the bus stop, even before he asked for Kopp’s badge number. Consequently, we find Kopp had arguable probable cause to arrest Peterson and is entitled to qualified immunity from Peterson’s unlawful arrest claim. B. Fourth Amendment Excessive Force Peterson next argues that Kopp violated his Fourth Amendment right to be free from unreasonable seizures by using excessive force when arresting him. Chambers, 641 F.3d at 905 (noting the Fourth Amendment framework is appropriately applied to excessive force claims arising out of incidents occurring both before and shortly after arrest). The Supreme Court has explained that “the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). An officer’s use of force will violate the Fourth Amendment if it is not “objectively reasonable.” Id. at 397, 109 S.Ct. 1865. Because “police officers" }, { "docid": "13422499", "title": "", "text": "was clearly established at the time of [the] defendant’s alleged misconduct.” Peterson v. Kopp, 754 F.3d 594, 598 (8th Cir.2014) (alteration in original) (quotation omitted). Government officials are entitled to qualified immunity “[u]nless both of these questions are answered affirmatively.” Nord v. Walsh County, 757 F.3d 734, 738 (8th Cir.2014). In addition, we are “permitted to exercise [our] sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first.” Pearson, 555 U.S. at 236, 129 S.Ct. 808. The district court addressed whether it was clearly established at the time of Greenman’s arrests that a reasonable police officer would have known that probable cause did not exist to arrest an intoxicated person operating a Segway for DWI. But we choose to address the defendants’ alternative argument: that they are entitled to qualified immunity because there was probable cause, or at least arguable probable cause, to arrest and prosecute Greenman on all three occasions for operating his- Segway in violation of Minnesota traffic laws other than DWI. If the offi cers had probable cause to arrest, then Greenman has failed to “make out a violation of a constitutional right” in the first instance. “Probable cause exists when the totality of the circumstances at the time of the arrest are sufficient to lead a reasonable person to believe that the defendant has committed or is committing an offense.” Kopp, 754 F.3d at 598 (quotation omitted). But a police officer need only have “arguable probable cause” to make the arrest in order to receive qualified immunity. Id. “Arguable probable cause exists even where an officer mistakenly arrests a suspect believing it is based on probable cause if the mistake is objectively reasonable.” Id. (quotation omitted). Though the probable-cause standard allows room for reasonable mistakes by a reasonable person, the qualified-immunity standard “ ‘protect[s] all but the plainly incompetent or those who knowingly violate the law.’ ” Ulrich v. Pope County, 715 F.3d 1054, 1059 (8th Cir.2013) (quoting Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)). Under Minnesota law, Greenman had an" } ]

[ { "docid": "22393745", "title": "", "text": "indicate that capital sentencing by judges offends a moral sense that this unique kind of judgment must be made by a more authentic voice of the community, nevertheless the Court is correct to insist that these factors cannot be conclusive, or the Eighth Amendment would prevent any innovation or variation in the administration of the criminal law. Ante, at 464. Therefore, a more focused inquiry into the Eighth Amendment implications of the decision to put an accused to death, and the jury’s relationship to those implications, is essential. V Punishment may be “cruel and unusual” because of its barbarity or because it is “excessive” or “disproportionate” to the offense. In order to evaluate a claim that a punishment is excessive, one must first identify the reasons for imposing it. In general, punishment may rationally be imposed for four reasons: (1) to rehabilitate the offender; (2) to incapacitate him from committing offenses in the future; (3) to deter others from committing offenses; or (4) to assuage the victim’s or the community’s desire for revenge or retribution. The first of these purposes is obviously inapplicable to the death sentence. The second would be served by execution, but in view of the availability of imprisonment as an alternative means of preventing the defendant from violating the law in the future, the death sentence would clearly be an excessive response to this concern. We are thus left with deterrence and retribution as the justifications for capital punishment. A majority of the Court has concluded that the general deterrence rationale adequately justifies the imposition of capital punishment at least for certain classes of offenses for which the legislature may reasonably conclude that the death penalty has a deterrent effect. However, in reaching this conclusion we have stated that this is a judgment peculiarly within the competence of legislatures and not the judiciary. Thus, the deterrence rationale cannot be used to support the use of judicial as opposed to jury discretion in capital sentencing, at least absent some finding, which the Florida Legislature has not purported to make, that judges are better at gauging the general" } ]

[ { "docid": "19652423", "title": "", "text": "this context that we must consider whether the execution of these petitioners would violate the Eighth Amendment. I begin with what I consider a near truism: that the death penalty could so seldom be imposed that it would cease to be a credible deterrent or measurably to contribute to any other end of punishment in the criminal justice system. It is perhaps true that no matter how infrequently those convicted of rape or murder are executed, the penalty so imposed is not disproportionate to the crime and those executed may deserve exactly what they received. It would also be clear that executed defendants are finally and completely incapacitated from again committing rape or murder or any other crime. But when imposition of the penalty reaches a certain degree of infrequency, it would be very doubtful that any existing general need for retribution would be measurably satisfied. Nor could it be said with confidence that society’s need for specific deterrence justifies death for so few when for so many in like circumstances life imprisonment or shorter prison terms are judged sufficient, or that community values are measurably reinforced by authorizing a penalty so rarely invoked. Most important, a major goal of the criminal law— to deter others by punishing the convicted criminal— would not be substantially served where the penalty is so seldom invoked that it ceases to be the credible threat essential to influence the conduct of others. For present purposes I accept the morality and utility of punishing one person to influence another. I accept also the effectiveness of punishment generally and need not reject the death penalty as a more effective- deterrent than a lesser punishment. But common sense and experience tell us that seldom-enforced laws become ineffective measures for controlling human conduct and that the death penalty, unless- imposed with sufficient frequency, will make little contribution to deterring those crimes for which it may be exacted. The imposition and execution of the death penalty are obviously cruel in the dictionary sense. But the penalty has not been considered cruel and unusual punishment in the constitutional sense because" }, { "docid": "19642407", "title": "", "text": "is the same question Justice Stewart, Justice Powell, and others raised over the course of several decades: The imposition and implementation of the death penalty seems capricious, random, indeed, arbitrary. From a defendant's perspective, to receive that sentence, and certainly to find it implemented, is the equivalent of being struck by lightning. How then can we reconcile the death penalty with the demands of a Constitution that first and foremost insists upon a rule of law? III \"Cruel\"-Excessive Delays The problems of reliability and unfairness almost inevitably lead to a third independent constitutional problem: excessively long periods of time that individuals typically spend on death row, alive but under sentence of death. That is to say, delay is in part a problem that the Constitution's own demands create. Given the special need for reliability and fairness in death penalty cases, the Eighth Amendment does, and must, apply to the death penalty \"with special force.\" Roper, 543 U.S., at 568, 125 S.Ct. 1183. Those who face \"that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution.\" Hall v. Florida, 572 U.S. ----, ----, 134 S.Ct. 1986, 2001, 188 L.Ed.2d 1007 (2014). At the same time, the Constitution insists that \"every safeguard\" be \"observed\" when \"a defendant's life is at stake.\" Gregg, 428 U.S., at 187, 96 S.Ct. 2909 (joint opinion of Stewart, Powell, and Stevens, JJ.); Furman, 408 U.S., at 306, 92 S.Ct. 2726 (Stewart, J., concurring) (death \"differs from all other forms of criminal punishment, not in degree but in kind\"); Woodson, supra, at 305, 96 S.Ct. 2978 (plurality opinion) (\"Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two\"). These procedural necessities take time to implement. And, unless we abandon the procedural requirements that assure fairness and reliability, we are forced to confront the problem of increasingly lengthy delays in capital cases. Ultimately, though these legal causes may help to explain, they do not mitigate the harms caused by delay itself. A Consider first the statistics. In 2014, 35" }, { "docid": "19642358", "title": "", "text": "a punishment condign-culpability, rehabilitative potential, and the need for deterrence also are relevant. That is why this Court has required an individualized consideration of all mitigating circumstances, rather than formulaic application of some egregiousness test. It is because these questions are contextual and admit of no easy answers that we rely on juries to make judgments about the people and crimes before them. The fact that these judgments may vary across cases is an inevitable consequence of the jury trial, that cornerstone of Anglo-American judicial procedure. But when a punishment is authorized by law-if you kill you are subject to death-the fact that some defendants receive mercy from their jury no more renders the underlying punishment \"cruel\" than does the fact that some guilty individuals are never apprehended, are never tried, are acquitted, or are pardoned. Justice BREYER's third reason that the death penalty is cruel is that it entails delay, thereby (1) subjecting inmates to long periods on death row and (2) undermining the penological justifications of the death penalty. The first point is nonsense. Life without parole is an even lengthier period than the wait on death row; and if the objection is that death row is a more confining environment, the solution should be modifying the environment rather than abolishing the death penalty. As for the argument that delay undermines the penological rationales for the death penalty: In insisting that \"the major alternative to capital punishment-namely, life in prison without possibility of parole-also incapacitates,\" post, at 2767, Justice BREYER apparently forgets that one of the plaintiffs in this very case was already in prison when he committed the murder that landed him on death row. Justice BREYER further asserts that \"whatever interest in retribution might be served by the death penalty as currently administered, that interest can be served almost as well by a sentence of life in prison without parole,\" post, at 2769. My goodness. If he thinks the death penalty not much more harsh (and hence not much more retributive), why is he so keen to get rid of it? With all due respect, whether" }, { "docid": "18172851", "title": "", "text": "Balkcom, 339 U. S. 9, 14 (1950) (dissenting opinion). See Strafer, Volunteering for Execution, 74 J. Crim. L. & C. 860, 872, n. 44 (1983) (a study of Florida inmates showed that 35% of those confined on death row attempted suicide; 42% seriously considered suicide). And death row conditions of special isolation may well aggravate that suffering. See Connolly, Better Never Than Late, 23 New England J. on Crim. & Civ. Confinement 101, 121 (1997); Strafer, supra, at 870-871, n. 37. At the same time, the longer the delay, the weaker the justification for imposing the death penalty in terms of punishment's basic retributive or deterrent purposes: Lackey, supra, at 1046. Nor can one justify lengthy delays by reference to constitutional tradition, for our Constitution was written at a time when delay between sentencing and execution could be measured in days or weeks, not decades. See Pratt v. Attorney General for Jamaica, [1994] 2 A. C. 1, 18, 4 All E. R. 769, 773 (P. C. 1993) (en banc) (Great Britain’s “Murder Act” of 1751 prescribed that execution take place on the next day but one after sentence). A growing number of courts outside the United States — courts that accept or assume the lawfulness of the death penalty — have held that lengthy delay in administering a lawful death penalty renders ultimate execution inhuman, degrading, or unusually cruel. In Pratt v. Attorney General for Jamaica, supra, for example, the Privy Council considei'ed whether Jamaica lawfully could execute two prisoners held for 14 years after sentencing. The Council noted that Jamaican law authorized the death penalty and that the United Nations Committee on Human Rights has written that “‘capital punishment is not per se unlawful under the [Human Rights] Covenant.’” Id., at 26, 4 All E. R., at 780. But the Privy Council concluded that it was an “inhuman act to keep a man facing the agony of execution over a long extended period of time,” id., at 29, 4 All E. R., at 783, and the delay of 14 years was “shocking,” id., at 33, 4 All E. R.," }, { "docid": "22730363", "title": "", "text": "judgment in Furman, Congress and 35 state legislatures re-enacted the death penalty for one or more crimes. All of these States authorize the death penalty for murder of one kind or another. With these profound developments in mind, I cannot say that capital punishment has been rejected by or is offensive to the prevailing attitudes and moral presuppositions in the United States or that it is always an excessively cruel or severe punishment or always a disproportionate punishment for any crime for which it might be imposed. These grounds for invalidating the death penalty are foreclosed by recent events, which this Court must accept as demonstrating that capital punishment is acceptable to the contemporary community as just punishment for at least some intentional killings. It is apparent also that Congress and 35 state legislatures are of the view that capital punishment better serves the ends of criminal justice than would life imprisonment and that it is therefore not excessive in the sense that it serves no legitimate legislative or social ends. Petitioner Roberts, to the contrary, submits that life imprisonment obviously would better serve the end of reformation or rehabilitation and that there is no satisfactory evidence that punishing by death serves more effectively than does life imprisonment the other major ends of imposing serious criminal sanctions: incapacitation of the prisoner, the deterrence of others, and moral re-enforcement and retribution. The death penalty is therefore cruel and unusual, it is argued, because it is the purposeless taking of life and the needless imposition of suffering. The widespread re-enactment of the death penalty, it seems to me, answers any claims that life imprisonment is adequate punishment to satisfy the need for reprobation or retribution. It also seems clear enough that death finally forecloses the possibility that a prisoner will commit further crimes, whereas life imprisonment does not. This leaves the question of general deterrence as the principal battleground: Does the death penalty more effectively deter others from crime than does the threat of life imprisonment? The debate on this subject started generations ago and is still in progress. Each side has" }, { "docid": "19642422", "title": "", "text": "16% were executed, 42% had their convictions or sentences overturned or commuted, and 6% died by other causes; the remainder (35%) are still on death row. Id., at 20 (Table 17); see also Baumgartner & Dietrich, Most Death Penalty Sentences Are Overturned: Here's Why That Matters, Washington Post Blog, Monkey Cage, Mar. 17, 2015 (similar). Thus an offender who is sentenced to death is two or three times more likely to find his sentence overturned or commuted than to be executed; and he has a good chance of dying from natural causes before any execution (or exoneration) can take place. In a word, executions are rare. And an individual contemplating a crime but evaluating the potential punishment would know that, in any event, he faces a potential sentence of life without parole. These facts, when recurring, must have some offsetting effect on a potential perpetrator's fear of a death penalty. And, even if that effect is no more than slight, it makes it difficult to believe (given the studies of deterrence cited earlier) that such a rare event significantly deters horrendous crimes. See Furman, 408 U.S., at 311-312, 92 S.Ct. 2726 (White, J., concurring) (It cannot \"be said with confidence that society's need for specific deterrence justifies death for so few when for so many in like circumstances life imprisonment or shorter prison terms are judged sufficient\"). But what about retribution? Retribution is a valid penological goal. I recognize that surviving relatives of victims of a horrendous crime, or perhaps the community itself, may find vindication in an execution. And a community that favors the death penalty has an understandable interest in representing their voices. But see A. Sarat, Mercy on Trial: What It Means To Stop an Execution 130 (2005) (Illinois Governor George Ryan explained his decision to commute all death sentences on the ground that it was \"cruel and unusual\" for \"family members to go through this ... legal limbo for [20] years\"). The relevant question here, however, is whether a \"community's sense of retribution\" can often find vindication in \"a death that comes,\" if at all, \"only" }, { "docid": "19652424", "title": "", "text": "prison terms are judged sufficient, or that community values are measurably reinforced by authorizing a penalty so rarely invoked. Most important, a major goal of the criminal law— to deter others by punishing the convicted criminal— would not be substantially served where the penalty is so seldom invoked that it ceases to be the credible threat essential to influence the conduct of others. For present purposes I accept the morality and utility of punishing one person to influence another. I accept also the effectiveness of punishment generally and need not reject the death penalty as a more effective- deterrent than a lesser punishment. But common sense and experience tell us that seldom-enforced laws become ineffective measures for controlling human conduct and that the death penalty, unless- imposed with sufficient frequency, will make little contribution to deterring those crimes for which it may be exacted. The imposition and execution of the death penalty are obviously cruel in the dictionary sense. But the penalty has not been considered cruel and unusual punishment in the constitutional sense because it was thought justified by the social ends it was deemed to serve. At the moment that it ceases realistically to further these purposes, however, the emerging question is whether its imposition in such circumstances would violate the Eighth Amendment. It is my view that it would, for its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment vio-lative of the Eighth Amendment. It is also my judgment that this point has been reached with respect to capital punishment as it is presently ad ministered under the statutes involved in these cases. Concededly, it is difficult to prove as a general proposition that capital punishment, however administered, more effectively serves the ends of the criminal law than does imprisonment. But however that may be, I cannot avoid the conclusion that as the statutes before us are now administered, the penalty is so infrequently imposed" }, { "docid": "7668167", "title": "", "text": "penalty], ... it is certainly dissipated by long intervals between judgment of death and its execution”). In the death penalty context, where finality of punishment is not achieved until the actual execution of the inmate, the ca.se is no different. In California, the system in which the death penalty is administered can only be described as completely dysfunctional. The delay inherent in California’s system is so extraordinary that it alone seriously undermines the continued deterrent effect of the State’s death penalty. See Chief Justice Ronald George Reflects on Death Penalty, Prop. 8, The California Report, Dec. 6-8, 2013 (“[0]ne of the rationales for the death penalty is a deterrent effect that .it •... has on a certain number of cases, ... and when there’s so much delay as there is now — 25 years’ worth is the average stay on death row — I think it loses its justification.”). But delay is not the only problem. Executions by the State are so few and far between that since 1978, of the 900 individuals sentenced to death in California, only 13 have been executed. The reasonable expectation of an individual contemplating a capital crime in California then is that if he is caught, it does not matter whether he is sentenced to death— he realistically faces only life imprisonment. Under such a system, the death penalty is about as effective a deterrent to capital crime as the possibility of a lightning strike is to going outside in the rain. 2. Retribution Just as inordinate delay and unpredictability of executions eliminate any deterrent effect California’s death' penalty might have, so too do such delay and unpredictability defeat the death penalty’s retributive objective. It is true that the Supreme Court has consistently affirmed the view that retribution, as “an expression of society’s moral outrage at particularly offensive conduct,” is a constitutionally permissible aim of capital sentencing schemes. See Gregg, 428 U.S. at 183, 96 S.Ct. 2909. But no reasonable jurist could dispute that inordinate delay frustrates that aim. See Coleman, 451 U.S. at 960, 101 S.Ct. 2994 (Rehnquist, J., dissenting from the denial" }, { "docid": "19642417", "title": "", "text": "649, 493 P.2d 880, 894 (1972) (collecting sources) (\"[C]ruelty of capital punishment lies not only in the execution itself and the pain incident thereto, but also in the dehumanizing effects of the lengthy imprisonment prior to execution during which the judicial and administrative procedures essential to due process of law are carried out\" (footnote omitted)); District Attorney for Suffolk Dist. v. Watson, 381 Mass. 648, 673, 411 N.E.2d 1274, 1287 (1980) (Braucher, J., concurring) (death penalty unconstitutional under State Constitution in part because \"[it] will be carried out only after agonizing months and years of uncertainty\"); see also Riley v. Attorney General of Jamaica, [1983] 1 A.C. 719, 734-735 (P.C. 1982) (Lord Scarman, joined by Lord Brightman, dissenting) (\"execution after inordinate delay\" would infringe prohibition against \"cruel and unusual punishments\" in § 10 of the \"Bill of Rights of 1689,\" the precursor to our Eighth Amendment); Pratt v. Attorney Gen. of Jamaica, [1994] 2 A.C. 1, 4 (P.C. 1993); id., at 32-33 (collecting cases finding inordinate delays unconstitutional or the equivalent); State v. Makwanyane 1995 (3) SA391 (CC) (S. Afr.); Catholic Commission for Justice & Peace in Zimbabwe v. Attorney-General, [1993] 1 Zim. L. R. 242, 282 (inordinate delays unconstitutional); Soering v. United Kingdom, 11 Eur. Ct. H. R. (ser. A), p. 439 (1989) (extradition of murder suspect to United States would violate the European Convention on Human Rights in light of risk of delay before execution); United States v. Burns, [2001] 1 S.C.R. 283, 353, ¶ 123 (similar). 2 The second constitutional difficulty resulting from lengthy delays is that those delays undermine the death penalty's penological rationale, perhaps irreparably so. The rationale for capital punishment, as for any punishment, classically rests upon society's need to secure deterrence, incapacitation, retribution, or rehabilitation. Capital punishment by definition does not rehabilitate. It does, of course, incapacitate the offender. But the major alternative to capital punishment-namely, life in prison without possibility of parole-also incapacitates. See Ring v. Arizona, 536 U.S. 584, 615, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (BREYER, J., concurring in judgment). Thus, as the Court has recognized, the death penalty's" }, { "docid": "7668169", "title": "", "text": "of certiorari) (“There can be little doubt that delay in the enforcement of capital punishment frustrates the purpose of retribution.”); Ceja v. Stewart, 134 F.3d 1368, 1374 (9th Cir.1998) (Fletcher, J., dissenting) (“[T]he ability of an execution to provide moral and emotional closure to a shocked community diminished as the connection between crime and punishment [becomes] more attenuated and more arbitrary.”); Lewis Powell, Capital Punishment, Commentary, 102 Harv. L.Rev. 1035, 1041 (1989) (“The retributive value of the death penalty is diminished as imposition of sentence becomes ever farther removed from the time of the offense.”). In California, a Death Row inmate will likely wait at least 25 years before his execution becomes even a realistic possibility. Were such lengthy delay an isolated, or even necessary, circumstance of a system that otherwise acts purposefully to give meaning to society’s moral outrage, the retributive purpose of the death penalty might continue to be served. Here, however, the delay is systemic, and the State itself is to blame. The State has allowed such dysfunction to creep into its death penalty system that the few executions it does carry out are arbitrary. Whereas few have been or will eventually be executed by California, the vast majority of individuals sentenced to death — each of whom, in the State’s view, committed crimes sufficiently reprehensible to warrant death — will effectively serve out terms of life imprisonment. See Appendix A. This reality of delay and dysfunction created by the State • simply cannot be reconciled with the asserted purpose of retribution. See Furman, 408 U.S. at 304-05, 92 S.Ct. 2726 (Brennan, J., concurring) (“The asserted public belief that murderers ... deserve to die is flatly inconsistent with the execution of a random few.”); id. at 311, 92 S.Ct. 2726 (White, J., concurring) (“[W]hen imposition of the [death] penalty reaches a certain degree of infrequency, it would be very doubtful that any existing general need for retribution would be measurably satisfied.”). C. Petitioners’ Fault in Creating Delay As the State correctly notes, courts have thus far generally not accepted the theory that extraordinary delay between sentencing and" }, { "docid": "19642424", "title": "", "text": "several decades after the crime was committed.\" Valle v. Florida, 564 U.S. ----, ----, 132 S.Ct. 1, 2, 180 L.Ed.2d 940 (2011) (BREYER, J., dissenting from denial of stay). By then the community is a different group of people. The offenders and the victims' families have grown far older. Feelings of outrage may have subsided. The offender may have found himself a changed human being. And sometimes repentance and even forgiveness can restore meaning to lives once ruined. At the same time, the community and victims' families will know that, even without a further death, the offender will serve decades in prison under a sentence of life without parole. I recognize, of course, that this may not always be the case, and that sometimes the community believes that an execution could provide closure. Nevertheless, the delays and low probability of execution must play some role in any calculation that leads a community to insist on death as retribution. As I have already suggested, they may well attenuate the community's interest in retribution to the point where it cannot by itself amount to a significant justification for the death penalty. Id., at ----, 132 S.Ct., at 2. In any event, I believe that whatever interest in retribution might be served by the death penalty as currently administered, that interest can be served almost as well by a sentence of life in prison without parole (a sentence that every State now permits, see ACLU, A Living Death: Life Without Parole for Nonviolent Offenses 11, and n. 10 (2013)). Finally, the fact of lengthy delays undermines any effort to justify the death penalty in terms of its prevalence when the Founders wrote the Eighth Amendment. When the Founders wrote the Constitution, there were no 20- or 30-year delays. Execution took place soon after sentencing. See P. Mackey, Hanging in the Balance: The Anti-Capital Punishment Movement in New York State, 1776-1861, p. 17 (1982); T. Jefferson, A Bill for Proportioning Crimes and Punishments (1779), reprinted in The Complete Jefferson 90, 95 (S. Padover ed. 1943); 2 Papers of John Marshall 207-209 (C. Cullen &" }, { "docid": "18172846", "title": "", "text": "no doubt that such a system, if reenacted, would have the deterrent effect that Justice Breyer finds lacking in the current system, but I am equally confident that such a procedure would find little support from this Court. See 623 U. S., at 288 (O’Connor, J., concurring in part and concurring in judgment); id., at 290 (Stevens, J., concurring in part and dissenting in part). Furthermore, I observed prior to Congress’ adoption of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. 104-132, Tit. IV-B, 5413(f), 110 Stat. 1269, that this Court has radically expanded federal habeas corpus review for state prisoners, which until AEDPA had been delineated in scope by an unchanged statutory formulation. See Wright v. West, 505 U. S. 277, 285-287 (1992) (opinion of Thomas, J.) (tracing the expansion of federal habeas corpus relief from its original conception as a mechanism for prisoners to challenge the jurisdiction of the state court that had rendered judgment). Each of these cases rejected the claim on the merits. I am not aware of a single American court that has accepted such an Eighth Amendment claim. Some judges have dismissed the claim in the strongest of terms. See, e. g., Turner v. Jabe, 58 F. 3d 924, 933 (CA4 1995) (Luttig, J., concurring) (describing a similar claim as a “mockery of our system of justice, and an affront to lawabiding citizens”). Justice Breyer, dissenting. These petitions ask us to consider whether the Eighth Amendment prohibits as “cruel and unusual punishmen[t3” the execution of prisoners who have spent nearly 20 years or more on death row. Both of these cases involve astonishingly long delays flowing in significant part from constitutionally defective death penalty procedures. Where a delay, measured in decades, reflects the State’s own failure to comply with the Constitution’s demands, the claim that time has rendered the execution inhuman is a particularly strong one. I believe this Court should consider that claim now. See Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting denial of certiorari); Elledge v. Florida, 525 U.S. 944 (1998) (Breyer, J., dissenting from" }, { "docid": "18172852", "title": "", "text": "prescribed that execution take place on the next day but one after sentence). A growing number of courts outside the United States — courts that accept or assume the lawfulness of the death penalty — have held that lengthy delay in administering a lawful death penalty renders ultimate execution inhuman, degrading, or unusually cruel. In Pratt v. Attorney General for Jamaica, supra, for example, the Privy Council considei'ed whether Jamaica lawfully could execute two prisoners held for 14 years after sentencing. The Council noted that Jamaican law authorized the death penalty and that the United Nations Committee on Human Rights has written that “‘capital punishment is not per se unlawful under the [Human Rights] Covenant.’” Id., at 26, 4 All E. R., at 780. But the Privy Council concluded that it was an “inhuman act to keep a man facing the agony of execution over a long extended period of time,” id., at 29, 4 All E. R., at 783, and the delay of 14 years was “shocking,” id., at 33, 4 All E. R., at 786. It held that the delay (and presumptively any delay of more than five years) was “‘inhuman or degrading punishment or other treatment’” forbidden by Jamaica’s Constitution unless “due entirely to the fault of the accused.” Id., at 29, 4 All E. R., at 783. The Supreme Court of India has held that an appellate court, which itself has authority to sentence, must take account of delay when deciding whether to impose a death penalty. Sher Singh v. State of Punjab, A. I. R. 1983 S. C. 465. A condemned prisoner may ask whether it is “just and fair” to permit execution in instances of “[prolonged delay.” Id., at 470-471. The Supreme Court of Zimbabwe, after surveying holdings of many foreign courts, concluded that delays of five and six years were “inordinate” and constituted “‘torture or . . . inhuman or degrading punishment or other such treatment.'” Catholic Commission for Justice and Peace in Zimbabwe v. Attorney-General, [1993] 1 Zimb. L. R. 239, 240, 269 (S) (Aug. 4, 1999), http: //www.law.wits.ac.za/salr/catholic.html. And the European" }, { "docid": "19642359", "title": "", "text": "nonsense. Life without parole is an even lengthier period than the wait on death row; and if the objection is that death row is a more confining environment, the solution should be modifying the environment rather than abolishing the death penalty. As for the argument that delay undermines the penological rationales for the death penalty: In insisting that \"the major alternative to capital punishment-namely, life in prison without possibility of parole-also incapacitates,\" post, at 2767, Justice BREYER apparently forgets that one of the plaintiffs in this very case was already in prison when he committed the murder that landed him on death row. Justice BREYER further asserts that \"whatever interest in retribution might be served by the death penalty as currently administered, that interest can be served almost as well by a sentence of life in prison without parole,\" post, at 2769. My goodness. If he thinks the death penalty not much more harsh (and hence not much more retributive), why is he so keen to get rid of it? With all due respect, whether the death penalty and life imprisonment constitute more-or-less equivalent retribution is a question far above the judiciary's pay grade. Perhaps Justice BREYER is more forgiving-or more enlightened-than those who, like Kant, believe that death is the only just punishment for taking a life. I would not presume to tell parents whose life has been forever altered by the brutal murder of a child that life imprisonment is punishment enough. And finally, Justice BREYER speculates that it does not \"seem likely\" that the death penalty has a \"significant\" deterrent effect. Post, at 2768. It seems very likely to me, and there are statistical studies that say so. See, e.g., Zimmerman, State Executions, Deterrence, and the Incidence of Murder, 7 J. Applied Econ. 163, 166 (2004) (\"[I]t is estimated that each state execution deters approximately fourteen murders per year on average\"); Dezhbakhsh, Rubin, & Shepherd, Does Capital Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel Data, 5 Am. L. & Econ. Rev. 344 (2003) (\"[E]ach execution results, on average, in eighteen fewer murders\" per year);" }, { "docid": "7668170", "title": "", "text": "death penalty system that the few executions it does carry out are arbitrary. Whereas few have been or will eventually be executed by California, the vast majority of individuals sentenced to death — each of whom, in the State’s view, committed crimes sufficiently reprehensible to warrant death — will effectively serve out terms of life imprisonment. See Appendix A. This reality of delay and dysfunction created by the State • simply cannot be reconciled with the asserted purpose of retribution. See Furman, 408 U.S. at 304-05, 92 S.Ct. 2726 (Brennan, J., concurring) (“The asserted public belief that murderers ... deserve to die is flatly inconsistent with the execution of a random few.”); id. at 311, 92 S.Ct. 2726 (White, J., concurring) (“[W]hen imposition of the [death] penalty reaches a certain degree of infrequency, it would be very doubtful that any existing general need for retribution would be measurably satisfied.”). C. Petitioners’ Fault in Creating Delay As the State correctly notes, courts have thus far generally not accepted the theory that extraordinary delay between sentencing and execution violates the Eighth Amendment. See, e.g., People v. Anderson, 25 Cal.4th 543, 606, 106 Cal.Rptr.2d 575, 22 P.3d 347 (2001) (“[Appellate delay in a capital case is not cruel and unusual punishment.”). When courts have rejected the theory, however, they have often not addressed whether any penological purpose of the death penalty continues to be served more than two decades after the death sentence was imposed. Rather, courts often rely on two justifications for rejecting the theory: first, that the delay is reasonably related to the state’s effort to safeguard the inmate’s constitutional rights by ensuring the accuracy of its death conviction and sentence, and second, that the delay is caused by the petitioner himself, and therefore cannot be constitutionally problematic. The facts here, however, show that at least as to California’s administration of its death penalty system, such assumptions are simply in-coirect. The Court pauses first to note the arguments that the State is not making in opposition to Mr. Jones’s claim. The State is not arguing that the delay in Mr. Jones’s" }, { "docid": "7668136", "title": "", "text": "ORDER DECLARING CALIFORNIA’S DEATH PENALTY SYSTEM UNCONSTITUTIONAL AND VACATING PETITIONER’S DEATH SENTENCE CORMAC J. CARNEY, District Judge. On April 7, 1995, Petitioner Ernest Dewayne Jones was condemned to death by the State of California. Nearly two decades later, Mr. Jones remains on California’s Death Row, awaiting his execution, but with complete uncertainty as to when, or even whether, it will ever come. Mr. Jones is not alone. Since 1978, when the current death penalty system was adopted by California voters, over 900 people have been sentenced to death for their crimes. Of them, only 13 have been executed. For the rest, the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution. Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death. As for the random few for whom execution does become a reality, they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary. That is the reality of the death penalty in California today and the system that has been created to administer it to Mr. Jones and the hundreds of other individuals currently on Death Row. Allowing this system to continue to threaten Mr. Jones with the slight possibility of death, almost a generation after he was first sentenced, violates the Eighth ' Amendment’s prohibition against cruel and unusual punishment. BACKGROUND A. Delay in California’s Death Penalty System California juries have imposed the death sentence on more than 900 individuals since 1978. Yet only 13 of those 900 have been executed by the State. Of the remainder, 94 have died of causes other than execution by the State, 39 were granted relief from their death sentence by the federal courts and have not been resen-tenced to death, and 748 are currently on Death" }, { "docid": "7668168", "title": "", "text": "death in California, only 13 have been executed. The reasonable expectation of an individual contemplating a capital crime in California then is that if he is caught, it does not matter whether he is sentenced to death— he realistically faces only life imprisonment. Under such a system, the death penalty is about as effective a deterrent to capital crime as the possibility of a lightning strike is to going outside in the rain. 2. Retribution Just as inordinate delay and unpredictability of executions eliminate any deterrent effect California’s death' penalty might have, so too do such delay and unpredictability defeat the death penalty’s retributive objective. It is true that the Supreme Court has consistently affirmed the view that retribution, as “an expression of society’s moral outrage at particularly offensive conduct,” is a constitutionally permissible aim of capital sentencing schemes. See Gregg, 428 U.S. at 183, 96 S.Ct. 2909. But no reasonable jurist could dispute that inordinate delay frustrates that aim. See Coleman, 451 U.S. at 960, 101 S.Ct. 2994 (Rehnquist, J., dissenting from the denial of certiorari) (“There can be little doubt that delay in the enforcement of capital punishment frustrates the purpose of retribution.”); Ceja v. Stewart, 134 F.3d 1368, 1374 (9th Cir.1998) (Fletcher, J., dissenting) (“[T]he ability of an execution to provide moral and emotional closure to a shocked community diminished as the connection between crime and punishment [becomes] more attenuated and more arbitrary.”); Lewis Powell, Capital Punishment, Commentary, 102 Harv. L.Rev. 1035, 1041 (1989) (“The retributive value of the death penalty is diminished as imposition of sentence becomes ever farther removed from the time of the offense.”). In California, a Death Row inmate will likely wait at least 25 years before his execution becomes even a realistic possibility. Were such lengthy delay an isolated, or even necessary, circumstance of a system that otherwise acts purposefully to give meaning to society’s moral outrage, the retributive purpose of the death penalty might continue to be served. Here, however, the delay is systemic, and the State itself is to blame. The State has allowed such dysfunction to creep into its" }, { "docid": "19642423", "title": "", "text": "a rare event significantly deters horrendous crimes. See Furman, 408 U.S., at 311-312, 92 S.Ct. 2726 (White, J., concurring) (It cannot \"be said with confidence that society's need for specific deterrence justifies death for so few when for so many in like circumstances life imprisonment or shorter prison terms are judged sufficient\"). But what about retribution? Retribution is a valid penological goal. I recognize that surviving relatives of victims of a horrendous crime, or perhaps the community itself, may find vindication in an execution. And a community that favors the death penalty has an understandable interest in representing their voices. But see A. Sarat, Mercy on Trial: What It Means To Stop an Execution 130 (2005) (Illinois Governor George Ryan explained his decision to commute all death sentences on the ground that it was \"cruel and unusual\" for \"family members to go through this ... legal limbo for [20] years\"). The relevant question here, however, is whether a \"community's sense of retribution\" can often find vindication in \"a death that comes,\" if at all, \"only several decades after the crime was committed.\" Valle v. Florida, 564 U.S. ----, ----, 132 S.Ct. 1, 2, 180 L.Ed.2d 940 (2011) (BREYER, J., dissenting from denial of stay). By then the community is a different group of people. The offenders and the victims' families have grown far older. Feelings of outrage may have subsided. The offender may have found himself a changed human being. And sometimes repentance and even forgiveness can restore meaning to lives once ruined. At the same time, the community and victims' families will know that, even without a further death, the offender will serve decades in prison under a sentence of life without parole. I recognize, of course, that this may not always be the case, and that sometimes the community believes that an execution could provide closure. Nevertheless, the delays and low probability of execution must play some role in any calculation that leads a community to insist on death as retribution. As I have already suggested, they may well attenuate the community's interest in retribution to the point" }, { "docid": "22790575", "title": "", "text": "we are going to use something today when something may be more humane becomes known later wouldn’t make sense for us.” Tr. of Public Hearing on Proposed Amendments to the New Jersey Lethal Injection Protocol 36 (Feb. 4, 2005). It is striking that when this state agency — with some specialized medical knowledge and with the benefit of some expert assistance and guidance — focused on the issue, it disagreed with the legislature’s “stereotyped reaction,” Mathews, 427 U. S., at 520,521 (Stevens, J., dissenting), and specified a two-drug protocol that omitted pancuronium bromide. In my view, therefore, States wishing to decrease the risk that future litigation will delay executions or invalidate their protocols would do well to reconsider their continued use of pancuronium bromide. II The thoughtful opinions written by The Chief Justice and by Justice Ginsburg have persuaded me that current decisions by state legislatures, by the Congress of the United States, and by this Court to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty. In Gregg v. Georgia, 428 U. S. 158 (1976), we explained that unless a criminal sanction serves a legitimate penological function, it constitutes “gratuitous infliction of suffering” in violation of the Eighth Amendment. We then identified three societal purposes for death as a sanction: incapacitation, deterrence, and retribution. See id., at 183, and n. 28 (joint opinion of Stewart, Powell, and Stevens, JJ.). In the past three decades, however, each of these rationales has been called into question. While incapacitation may have been a legitimate rationale in 1976, the recent rise in statutes providing for life imprisonment without the possibility of parole demonstrates that incapacitation is neither a necessary nor a sufficient justification for the death penalty. Moreover, a recent poll indicates that support for the death penalty drops significantly when life without the possibility of parole is presented" }, { "docid": "7668165", "title": "", "text": "selection of who gets sentenced to death. But the principles on which it relied apply here with equal force. The Eighth Amendment simply cannot be read to proscribe a state from randomly selecting which few members of its criminal population it will sentence to death, but to allow that same state to randomly select which trivial few of those condemned it will actually execute. Arbitrariness in execution is still arbitrary, regardless of when in the process the arbitrariness arises. B. The Penological Purpose of California’s Death Penalty System The systemic delay and dysfunction that result in the arbitrary execution of California’s Death Row inmates give rise to a further constitutional problem with the State’s administration of its death penalty system. In California, the execution of a death sentence is so infrequent, and the delays preceding it so extraordinary, that the death penalty is deprived of any deterrent or retributive effect it might once have had. Such an outcome is antithetical to any civilized notion of just punishment. 1. Deterrence Whether the death penalty has any deterrent effect when administered in a functional system is a widely contested issue upon which no clear empirical con sensus has been reached. But even when administered in a functional system, few could dispute that long delays preceding execution frustrate whatever deterrent effect the death penalty may have. Indeed, the law, and common sense itself, have long recognized that the deterrent effect of any punishment is contingent upon the certainty and timeliness of its imposition. See, e.g., Harmelin, 501 U.S. at 989, 111 S.Ct. 2680 (“[D]eterrent effect depends not only upon the amount of the penalty but upon its certainty....”); United States v. Panico, 308 F.2d 125, 128 (2d Cir.1962) (“There can be little doubt that the effectiveness of punishment as a deterrent is related not only to the quality of the possible punishment but to the certainty and promptness as well.”), vacated on other grounds, 375 U.S. 29, 84 S.Ct. 19, 11 L.Ed.2d 1 (1963); see also Commission Report at 115 n. 8 (agreeing that “[i]f there is a deterrent value [to the death" } ]

[ { "docid": "22158352", "title": "", "text": "Security. See Knapik v. Ashcroft, 384 F.3d 84, 86 n. 2 (3d Cir.2004) (citing Homeland Security Act of 2002, Pub.L. 107-296, §§ 441, 451, 471, 116 Stat. 2135 (2002)). . Effective August 20, 2001, seven days before Partyka pled guilty to this crime, the New Jersey assault statute was amended to include another ground for aggravated assault: simple assault on a law enforcement officer “because of his status as a law enforcement officer.” N.J. Stat. Ann. § 2C:12-lb(5)(a) (West Supp.2004). The IJ applied the old version to Partyka's case. Contrary to Partyka's assertions, both versions of the statute require knowledge that the person assaulted is a police officer. Thus, the statutory amendment has no impact on whether the crime involves moral turpitude. See discussion infra p. 413. . The attempts described in subsection a(l) and (3) require specific intent. See, e.g., United States v. Rebelo, 358 F.Supp.2d 400, 416 (D.N.J.2005) (\"It is blacldetter law that criminal attempt requires specific intent.”) (citing N.J. Stat. Ann. § 2C:5-1). . Of significant importance is the BIA's recognition that a \"state's determination as to what crimes it deems morally turpitudinous is not conclusive for federal immigration purposes.” Matter of Medina, 15 I. & N. Dec. 611, 614, 1976 WL 32319 (BIA 1976). . But see Mei v. Ashcroft, 393 F.3d 737, 740 (7th Cir.2004). . Accordingly, we disagree with the court in Rebelo, insofar as it concluded that the least culpable conduct under N.J. Stat. Ann. § 2C:12-lb(5)(a) involves moral turpitude. See Rebelo, 358 F.Supp.2d at 417-21. ALITO, Circuit Judge, concurring in the judgment in part and dissenting in part. I concur in the judgment insofar as it grants the petition for review. I agree with the majority that the Immigration Judge misread the New Jersey assault statute when he said that “all the offenses [covered by that statute] require[] at a minimum an intent to cause bodily injury.” IJ Dec. & Order at 3 n. 2. In fact, under the provision at issue here, N.J.S.A. § 2C: 12 — 1 (b)(5)(a), the minimum mens rea with respect to the infliction of bodily injury" } ]

[ { "docid": "23533303", "title": "", "text": "the charging document, the plea agreement or transcript of the plea colloquy in which the defendant confirmed the factual basis for the plea, or a comparable judicial record of information. 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). . The Advisory Committee Note to the Pennsylvania Suggested Standard Criminal Jury Instructions for § 2701(b)(2) is silent on the applicable mental state requirement: \"Crimes Code § 2701(b)(2) raises simple assault from a misdemeanor of the second degree to a misdemeanor of the first degree where the victim was under the age of 12 and the defendant was an adult 21 years of age or older.” See Pa. SSJI (Crim), 15.2701G (simple assault — child victim). . The government states, \"The subsection under which Mr. Jean-Louis was convicted is referred to in the statute as a 'grading factor.’ According to Pennsylvania case law, 'the grading of the offense is not an element thereof.’ ” Respondent’s Supplemental Br. at 3. . 18 Pa.C.S. § 302(c) defines the requisite mental state when the statute is silent on the culpability applicable to a material element of an offense. It provides: Culpability required unless otherwise provided. — When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts intentionally, knowingly, or recklessly with respect thereto. Id. (emphasis added). 18 Pa.C.S. § 302(d), which serves a slightly different function than § 302(c), defines the requisite mental state when the statute defines the culpability sufficient for some, but not all, material elements of an offense. It provides: Prescribed culpability requirement applies to all material elements. — When the law defining an offense prescribes the kind of culpability that is sufficient for commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears. Id. (emphasis added). . Moreover, the designation of subpart 2701(b)(2) as a \"grading” factor has survived subsequent revisions of the simple assault statute. 18 Pa.C.S. § 2701 (amended in 2001, June" }, { "docid": "16337566", "title": "", "text": "following elements: “(1) the person assaulted must sustain bodily injury; (2) the accused must know that the person assaulted is a peace officer; and (3) the peace officer must be engaged in the lawful discharge of an official duty.” Danesh, 19 I. & N. Dec. at 673. Like the New Jersey statute in the instant case, the Texas statute contained no express requirement of intent to cause bodily injury. The Board of Immigration Appeals reasoned, however, that other elements of the statute served as a proxy for intent. The fact that bodily injury is an essential element indicates that sufficient force must have been employed to cause harm to the victim’s person. The offense is therefore properly deemed to be more serious than a simple assault. Furthermore, the requirements that there be knowledge of the assaulted person’s status as a peace officer and that the officer be discharging an official duty establish that the accused has used violence to intentionally interfere with the lawful functions of a peace officer. Such conduct exhibits a deliberate disregard for the law, which we consider to be a violation of the accepted rules of morality and the duties owed to society. Id. Thus, the Board concluded that “an aggravated assault against a peace officer, which results in bodily harm to the victim and which involves knowledge by the offender that his force is directed to an officer who is performing an official duty, constitutes a crime that involves moral turpitude.” Id. The same reasoning that applied in Danesh applies to N.J.S.A. 2C:12-la.(2). Rebelo argues that N.J.S.A. 2C:12-lb.(5)(a) does not require bodily injury as a necessary legal element of the crime of aggravated assault. In making this argument, Rebelo must necessarily be referring to paragraphs a.(l) and (3), the paragraphs requiring specific intent; it is indisputable that bodily injury is a necessary element of the crime defined under paragraph a.(2). N.J.S.A. 2C:12-la.(2) (“A person is guilty of assault if he ... [njegligently causes bodily injury to another with a deadly weapon ....”) (emphasis added). As already noted, the existence of specific intent in paragraphs a.(l)" }, { "docid": "16337574", "title": "", "text": "one to use force to resist an illegal arrest.”). Thus, so long as the person arrested knew that the individual effectuating the arrest was an authorized police officer engaged in the performance of his or her duties, New Jersey courts will make no further inquiry into the lawfulness of the arrest. The distinction that Rebelo highlights between the New Jersey statute in the instant case and the Texas statute in Danesh is a distinction that New Jersey courts themselves do not credit for purposes of determining culpability for aggravated assault. Moreover, the Board of Immigration Appeals apparently did not consider this element of the Texas statute to be dispositive, as the Board dropped the “lawfulness” requirement from the final expression of its holding. See Danesh, 19 I. & N. Dec. at 673 (“[W]e conclude that an aggravated assault against a peace officer, which results in bodily harm to the victim and which involves knowledge by the offender that his force is directed to an officer who is performing an official duty, constitutes a crime that involves moral turpitude.”); see also id. at 672 (making no reference to lawfulness of arrest as a fac tor to be considered in determining whether moral turpitude is involved in an assault). Accordingly, this Court concludes that even if N.J.S.A. 2C:12-lb.(5)(a) permits a conviction for aggravated assault to obtain where an arrest was effectuated unlawfully, that fact in itself does not undermine the persuasive authority of Dan-esh... Rebelo’s efforts to distinguish the statute in Danesh from N.J.S.A. 2C:12-la.(2) tellingly omit the greatest distinction, however: the New Jersey statute, unlike that in Danesh, requires the assault to have been committed with a deadly weapon. It has been held that aggravated assault with a deadly weapon is “inherently base” and constitutes a crime involving moral turpitude, even where no criminal intent is specified in the underlying statute. In re O—, 3 I. & N. Dec. 193, 197-98 (BIA 1948). Indeed, the Board of Immigration Appeals has written that “[t]here would appear to be little or no difference, ... from the standpoint of moral turpitude, between an assault" }, { "docid": "22158338", "title": "", "text": "assault statute permits convictions in the absence of an intent to cause bodily injury, and therefore, his conviction does not evince moral turpitude. The IJ rejected Partyka’s contention, and concluded that “all the offenses” defined in the New Jersey assault statute “required at a minimum an intent to cause bodily injury.” IJ Dec. & Order at 3 n. 2. The IJ, however, misconstrued the statute, as it plainly allows convictions for recklessly or negligently causing bodily injury. The first element of aggravated assault under the New Jersey statute is “simple assault as defined in subsection a(l), (2), or (3) of this section.” N.J. Stat. Ann. § 2C:12-lb(5). The minimum culpable conduct required to commit simple assault is the negligent infliction of bodily injury with a deadly weapon under subsection a(2). A person acts negligently, according to the New Jersey criminal code, when “he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.” Id. § 2C:2-2b(4). The risk involved “must be of such a nature and degree that the actor’s failure to perceive it,” considering the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would have exercised. Id. We need not concern ourselves with the statutory definition of a deadly weapon because Partyka had no weapon in his possession. Based on the statutory language of § 2C:12-lb(5)(a) both before and after Partyka pled guilty to this crime in August 2001, it is apparent that the State was required to prove that Partyka knew the person he was assaulting was a police officer. See, e.g., United States v. Rebelo, 358 F.Supp.2d 400, 418-19 (D.N.J.2005); State v. Green, 318 N.J.Super. 361, 724 A.2d 254, 262 & n. 1 (Ct.App.Div.1999). Therefore, we must consider whether the negligent infliction of - bodily injury on someone known to the defendant to be a law enforcement officer is a crime involving moral turpitude. B. Moral Turpitude The INA does not define “moral turpitude,” and, as this Court has observed, the phrase “defies a precise definition.” De Leon-Reynoso," }, { "docid": "16337567", "title": "", "text": "for the law, which we consider to be a violation of the accepted rules of morality and the duties owed to society. Id. Thus, the Board concluded that “an aggravated assault against a peace officer, which results in bodily harm to the victim and which involves knowledge by the offender that his force is directed to an officer who is performing an official duty, constitutes a crime that involves moral turpitude.” Id. The same reasoning that applied in Danesh applies to N.J.S.A. 2C:12-la.(2). Rebelo argues that N.J.S.A. 2C:12-lb.(5)(a) does not require bodily injury as a necessary legal element of the crime of aggravated assault. In making this argument, Rebelo must necessarily be referring to paragraphs a.(l) and (3), the paragraphs requiring specific intent; it is indisputable that bodily injury is a necessary element of the crime defined under paragraph a.(2). N.J.S.A. 2C:12-la.(2) (“A person is guilty of assault if he ... [njegligently causes bodily injury to another with a deadly weapon ....”) (emphasis added). As already noted, the existence of specific intent in paragraphs a.(l) and (3) is in itself sufficient to establish moral turpitude, bodily injury notwithstanding. Yet, even as to the offenses defined in paragraphs a.(l) and (3), bodily injury is a necessary element of the crime of aggravated assault in the third degree. See N.J.S.A. 2C:12-lb.(6) (1995) (“Aggravated assault ... under subsection b.(5) is a crime of the third degree if the victim suffers bodily injury, otherwise it is a crime of the fourth degree.”)- Rebelo’s insistence that bodily injury is a mere sentencing factor and not a legal element rings hollow in light of New Jersey Supreme Court precedent and law enforcement practices. In State v. Fortin, 178 N.J. 540, 843 A.2d 974 (2004), the New Jersey Supreme Court, reviewing federal jurisprudence on the Sixth Amendment trial by jury requirement, concluded that “functionally, the aggravating factors in [New Jersey’s murder statute] are indistinguishable, for this purpose, from the elements of a crime.” Id. at 643, 843 A.2d at 1034. The court continued: “Before Apprendi and Ring, New Jersey treated aggravating factors as though they were elements" }, { "docid": "22158336", "title": "", "text": "1953). Where a statute covers both turpitudinous and non-turpitudinous acts, however, it is “divisible,” and we then look to the record of conviction to determine whether the alien was convicted under that part of the statute defining a crime involving moral turpitude. See, e.g., Padilla v. Gonzales, 397 F.3d 1016, 1019 (7th Cir. 2005); Chanmouny v. Ashcroft, 376 F.3d 810, 813 (8th Cir.2004); Hamdan, 98 F.3d at 187; Matter of Ajami, 22 I. & N. Dec. 949, 950, 1999 WL 487022 (BIA 1999). Thus, we first focus on the elements of the New Jersey statute. Then, we examine the meaning of “moral turpitude” under BIA precedents and federal case law. Because we conclude that moral turpitude does not inhere in all violations of the New Jersey statute, we turn to Partyka’s record of conviction to determine whether he was convicted under a subsection involving moral turpitude. A. The New Jersey Statute The New Jersey aggravated assault statute effective at the time of Partyka’s arrest and indictment provided that a person is guilty of aggravated assault for committing a simple assault as defined in subsection a. (1), (2) or (3) of this section upon: (a) Any law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority.... N.J. Stat. Ann. § 2C:12-lb(5)(a) (West 1995 & Supp.2004), amended by 2001 N.J. Sess. Law Serv. ch. 215, § l. Under subsection a, one is guilty of simple assault if one: (1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (2) Negligently causes bodily injury to another with a deadly weapon; or (3) Attempts by physical menace to put another in fear of imminent serious bodily injury. Id. § 2C:12-la(l)-(3). Aggravated assault on a law enforcement officer is a crime of the third degree if the officer suffers bodily injury. Id. § 2C:12 — lb(ll). Partyka pled guilty to aggravated assault in the third degree, and thus he does not contest that his assault on a law enforcement officer resulted in bodily injury. Rather, he contends that the New Jersey" }, { "docid": "23533263", "title": "", "text": "Mathis, 317 Pa.Super. 226, 463 A.2d 1167, 1170 (1983); Commonwealth v. Stauffer, 239 Pa.Super. 463, 361 A.2d 383, 384 (1976); Commonwealth v. McKennion, 235 Pa.Super. 160, 340 A.2d 889, 892 (Pa.Super.1975). A recent decision of the New Hampshire Supreme Court supports the proposition that the Pennsylvania gap-filling provisions are inapplicable to subpart 2701(b)(2). In State v. McCabe, 145 N.H. 686, 765 A.2d 176, 180-81 (2001), the Court considered what mental state requirement, if any, attached to conduct — “use of a deadly weapon” — that appeared in the penalty section of the offense of “criminal threatening.” The statute did not specify a mental state requirement. Id. at 180. The Court concluded that the New Hampshire gap-filling provision, applicable solely to material elements of an offense, did not govern, because “[t]he only statutory reference to the use of a deadly weapon is contained in the penalty section” of the statute, and the gap-filling provision applies solely to elements of an offense, not to grading factors. Id. at 180-81; see State v. Polk, 155 N.H. 585, 927 A.2d 514, 516-17 (2007) (holding that gap-filling provision did not apply to conduct solely affecting grading of an offense); see also State v. Demmons, 137 N.H. 716, 634 A.2d 998, 1000 (1993) (noting that culpability requirement is only implied for material elements of an offense). Thus, we conclude that the Pennsylvania assault statute as written permits a conviction under subpart 2701(b)(2) where the defendant did not know that the victim was under 12 years old. This key fact distinguishes this case from the statute we considered in Partyka v. Att’y Gen., 417 F.3d 408, 413 (3d Cir.2005). There, we had to determine the minimum culpability required for conviction of the offense of “aggravated assault,” defined under New Jersey law as the commission of simple assault against “[a]ny law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority.” N.J. Stat. Ann. § 2C:12-lb(5)(a) (West 1995 & Supp.2004). Concluding that commission of an assault against a law enforcement officer was a material element of the offense of aggravated" }, { "docid": "23533264", "title": "", "text": "A.2d 514, 516-17 (2007) (holding that gap-filling provision did not apply to conduct solely affecting grading of an offense); see also State v. Demmons, 137 N.H. 716, 634 A.2d 998, 1000 (1993) (noting that culpability requirement is only implied for material elements of an offense). Thus, we conclude that the Pennsylvania assault statute as written permits a conviction under subpart 2701(b)(2) where the defendant did not know that the victim was under 12 years old. This key fact distinguishes this case from the statute we considered in Partyka v. Att’y Gen., 417 F.3d 408, 413 (3d Cir.2005). There, we had to determine the minimum culpability required for conviction of the offense of “aggravated assault,” defined under New Jersey law as the commission of simple assault against “[a]ny law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority.” N.J. Stat. Ann. § 2C:12-lb(5)(a) (West 1995 & Supp.2004). Concluding that commission of an assault against a law enforcement officer was a material element of the offense of aggravated assault, we cited United States v. Rebelo, 358 F.Supp.2d 400, 418-19 (D.N.J.2005), which applied the New Jersey gap-filling provision, and held that the offender had to have known that the victim was a police officer. Partyka, 417 F.3d at 413. Crucial to our analysis — and to the analysis in Rebelo upon which we relied — was the fact that the relevant conduct appeared in the definition of the offense of aggravated assault and thus was an element thereof. Id. (citing Rebelo, 358 F.Supp.2d at 418-19). Because the offender had to know that the victim was an officer, the offense reflected the requisite degree of depravity and thus constituted a CIMT. Here, by contrast, the age of the perpetrator and victim are specified not in the definition of the offense but rather under the separate statutory heading, “grading.” Regardless of how New Jersey law treats “grading” factors, their status under Pennsylvania law is clear. Where the conduct is included under a statutory section entitled, “grading,” rather than under the “definition” of the offense, the conduct" }, { "docid": "23533261", "title": "", "text": "minimum culpability required under sub-part 2701(b)(2), we requested further briefing. In his supplemental brief, Jean-Louis urges the Court to construe subpart 2701(b)(2) as written — it does not expressly prescribe a mental state requirement, and thus none applies. The government cites evidence consistent with Jean-Louis’s interpretation of the statute, including the Pennsylvania suggested jury instructions and accompanying Advisory Committee Note, neither of which requires that a jury find that the defendant knew, or should have known, that the victim was under 12. The government also specifically notes that subpart 2701(b)(2) is a grading factor, not an element of the substantive offense. These aspects of the statute actually support Jean-Louis’s position. Quite apart from the government’s concessions, we independently conclude that no culpability requirement attaches, explicitly or implicitly, to subpart 2701(b)(2). Unlike subpart 2701(a)(1), which expressly requires that the defendant intentionally, knowingly, or recklessly inflict bodily injury, subpart 2701(b)(2) does not specify the minimum culpability required to trigger enhanced penalties. Nor is such a requirement implicit in the statute. The determination that subpart 2701(b)(2) sets forth a grading factor and not an element of the offense is significant. As a “grading” factor, subpart 2701(b)(2) does not trigger the statutory “gap-filling” provisions, which provide a mental state requirement that would be otherwise missing from “elements” of an offense. See 18 Pa.C.S. § 103 (defining “elements] of an offense” as “conduct or attendant circumstances ... included in the description of the forbidden conduct in the definition of the offense ”) (emphasis added); Commonwealth v. Shamberger, 788 A.2d 408, 418 (Pa.Super.2001) (distinguishing “grading” factors from the elements of an offense); accord Commonwealth v. Passarelli, 789 A.2d 708, 714 (Pa.Super.2001); Commonwealth v. Kisner, 736 A.2d 672, 674 (Pa.Super.1999). The explicit designation of sub-part 2701(b)(2) as a “grading” factor is particularly strong evidence of the legislative intent here, as the distinction between “grading” factors and “elements” of an offense was already established in Pennsylvania jurisprudence when subpart 2701(b)(2) was added in 1988. P.L. 1275, No. 158, § 1 (Dec. 19, 1988); see, e.g., Commonwealth v. Sparks, 342 Pa.Super. 202, 492 A.2d 720, 725 (1985); Commonwealth v." }, { "docid": "22158351", "title": "", "text": "of the simple assault statute Partyka was charged. Likewise, the Judgment of Conviction and Statement of Reasons and Sentence do not reveal the level of criminal culpability involved. Therefore, we must decide whether Par-tyka’s crime involves moral turpitude based on the least culpable conduct required to secure a conviction under the New Jersey statute. As we have concluded, supra § III.A, the least culpable conduct under the statute is the negligent infliction of bodily injury with a deadly weapon. We hold that negligently inflicted bodily injury lacks the inherent baseness or depravity that evinces moral turpitude, see supra § III.B, and therefore, Partyka was not convicted of such a crime. IV. Accordingly, Partyka is not deportable, not having committed a crime involving moral turpitude under § 237(a)(2)(A)(i) of the INA, 8 U.S.C. § 1227(a)(2)(A)(i). His petition for review is granted and the BIA’s order of removal will be vacated. . On March 1, 2003, the INS’s functions were transferred to the newly-formed Bureau of Immigration and Customs Enforcement, within the United States Department of Homeland Security. See Knapik v. Ashcroft, 384 F.3d 84, 86 n. 2 (3d Cir.2004) (citing Homeland Security Act of 2002, Pub.L. 107-296, §§ 441, 451, 471, 116 Stat. 2135 (2002)). . Effective August 20, 2001, seven days before Partyka pled guilty to this crime, the New Jersey assault statute was amended to include another ground for aggravated assault: simple assault on a law enforcement officer “because of his status as a law enforcement officer.” N.J. Stat. Ann. § 2C:12-lb(5)(a) (West Supp.2004). The IJ applied the old version to Partyka's case. Contrary to Partyka's assertions, both versions of the statute require knowledge that the person assaulted is a police officer. Thus, the statutory amendment has no impact on whether the crime involves moral turpitude. See discussion infra p. 413. . The attempts described in subsection a(l) and (3) require specific intent. See, e.g., United States v. Rebelo, 358 F.Supp.2d 400, 416 (D.N.J.2005) (\"It is blacldetter law that criminal attempt requires specific intent.”) (citing N.J. Stat. Ann. § 2C:5-1). . Of significant importance is the BIA's recognition that" }, { "docid": "23533262", "title": "", "text": "a grading factor and not an element of the offense is significant. As a “grading” factor, subpart 2701(b)(2) does not trigger the statutory “gap-filling” provisions, which provide a mental state requirement that would be otherwise missing from “elements” of an offense. See 18 Pa.C.S. § 103 (defining “elements] of an offense” as “conduct or attendant circumstances ... included in the description of the forbidden conduct in the definition of the offense ”) (emphasis added); Commonwealth v. Shamberger, 788 A.2d 408, 418 (Pa.Super.2001) (distinguishing “grading” factors from the elements of an offense); accord Commonwealth v. Passarelli, 789 A.2d 708, 714 (Pa.Super.2001); Commonwealth v. Kisner, 736 A.2d 672, 674 (Pa.Super.1999). The explicit designation of sub-part 2701(b)(2) as a “grading” factor is particularly strong evidence of the legislative intent here, as the distinction between “grading” factors and “elements” of an offense was already established in Pennsylvania jurisprudence when subpart 2701(b)(2) was added in 1988. P.L. 1275, No. 158, § 1 (Dec. 19, 1988); see, e.g., Commonwealth v. Sparks, 342 Pa.Super. 202, 492 A.2d 720, 725 (1985); Commonwealth v. Mathis, 317 Pa.Super. 226, 463 A.2d 1167, 1170 (1983); Commonwealth v. Stauffer, 239 Pa.Super. 463, 361 A.2d 383, 384 (1976); Commonwealth v. McKennion, 235 Pa.Super. 160, 340 A.2d 889, 892 (Pa.Super.1975). A recent decision of the New Hampshire Supreme Court supports the proposition that the Pennsylvania gap-filling provisions are inapplicable to subpart 2701(b)(2). In State v. McCabe, 145 N.H. 686, 765 A.2d 176, 180-81 (2001), the Court considered what mental state requirement, if any, attached to conduct — “use of a deadly weapon” — that appeared in the penalty section of the offense of “criminal threatening.” The statute did not specify a mental state requirement. Id. at 180. The Court concluded that the New Hampshire gap-filling provision, applicable solely to material elements of an offense, did not govern, because “[t]he only statutory reference to the use of a deadly weapon is contained in the penalty section” of the statute, and the gap-filling provision applies solely to elements of an offense, not to grading factors. Id. at 180-81; see State v. Polk, 155 N.H. 585, 927" }, { "docid": "22158349", "title": "", "text": "under the Texas statute is simple assault, which requires either the intentional, knowing, or reckless infliction of bodily injury. Id. at 673 n. 1 (citing Tex. Penal Code § 22.02(a)(2)(A)). Subsequently, in its decision in Matter of Perez-Contreras, the BIA cited Matter of Danesh for the proposition that assault involves moral turpitude only if the statute requires scienter. See Matter of Perez-Contreras, 20 I. & N. Dec. at 618. Thus, a careful reading of Matter of Danesh militates against the Attorney General’s contention that moral turpitude inheres in causing bodily injury to a law enforcement officer with a deadly weapon as a result of mere negligence. For the foregoing reasons, we conclude that moral turpitude does not inhere in the least culpable conduct under N.J. Stat. Ann. § 2C:12-lb(5)(a). However, if we can determine from Partyka’s record of conviction that he was convicted for violating a subsection of the statute requiring intentional, knowing, or reckless infliction of bodily injury, then Matter of Danesh would apply, and we would agree with the IJ’s finding of moral turpitude. C. Partyka’s Record of Conviction Under the general rule governing moral turpitude determinations, “absent specific evidence to the contrary in the record of conviction, the statute must be read at the minimum criminal conduct necessary to sustain a conviction under the statute.” Hamdan, 98 F.3d at 189 (citing United States ex rel. Guarino v. Uhl, 107 F.2d 399 (2d Cir.1939)). The record of conviction includes “the indictment, plea, verdict, and sentence.” Chanmouny, 376 F.3d at 812 (citing Matter of Ajami, 22 I. & N. Dec. at 950). The administrative record before us contains the Indictment, Judgment of Conviction, and Statement of Reasons and Sentence. Partyka’s plea agreement is not part of the record. The Indictment charges that Partyka “did commit a simple assault as defined in [N.J. Stat. Ann. § ] 2C:12-la causing bodily injury to” two law enforcement officers while they were “acting in the performance of [their] duties, while in uniform or exhibiting evidence of [their] authority, contrary to the provisions of the N.J.S. 2C:12-lb(5).” It does not specify under which subsection" }, { "docid": "16337561", "title": "", "text": "F.2d 990, 1003 (9th Cir.1991). Courts must base their determinations upon the statutory definition of the crime in question, as well as the record of conviction, and may not consider the nature of the act committed. Smriko v. Ashcroft, 387 F.3d 279, 283 (3d Cir.2004). Rebelo was convicted of violating N.J.S.A. 2C:12-lb.(5)(a). The version of that statute in effect at the time of Rebe-lo’s offense provided as follows: A person is guilty of aggravated assault if he ... [c]ommits a simple assault as defined in subsection a.(l), (2) or (3) of this section upon ... [a]ny law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority. N.J.S.A. 2C:12-lb.(5)(a) (1995). Simple assault includes any assault in which the perpetrator: (1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (2) Negligently causes bodily injury to another with a deadly weapon; or (3) Attempts by physical menace to put another in fear, of imminent serious bodily injury. - N.J.S.A. 2C:12-1a. (1995). The third degree status of Rebelo’s crime reflects a judicial finding that Officer Gramiak sustained a bodily injury. N.J.S.A. 2C:12-lb.(6) (1995) (“Aggravated assault ... under subsection b.(5) is a crime of the third degree if the victim suffers bodily injury, otherwise it is a crime of the fourth degree”). Paragraph b.(5)(a) is drafted so as to subsume the elements of paragraph a. while adding the aggravating factor that the assault was committed on a law enforcement officer. There is no express requirement of scienter in paragraph b.(5)(a). Paragraph 2C:2-2c.(3) of the New Jersey Statutés Annotated provides that “[a] statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime with the culpability defined in paragraph b.(2) of this section.” N.J.S.A. 2C:2-2c.(3). Paragraph b.(2) defines the mental state of “knowingly.” N.J.S.Á. 2C:2-2b.(2). As N.J.S.A. 2C:12-lb.(5)(a) does not clearly indicate a legislative intent to impose strict liability, that statute must be construed as requiring knowledge on the part of the accused. The.,guilty plea that Rebelo entered on July 6," }, { "docid": "23533257", "title": "", "text": "or reckless,” the IJ assumed that Jean-Louis “recklessly” inflicted bodily injury on another — the least culpable mental state specified in § 2701(a)(1). A. 113. Confining her analysis to that subpart of the statute, the IJ did not address whether there was a culpability requirement under subpart 2701(b)(2). Accordingly, the IJ did not consider whether subpart 2701(b)(2) required the defendant to have known of the underage status of the victim, or would apply in a situation in which the defendant was not aware, and had no reason to believe, that the victim was a minor. Instead, the IJ reasoned that because the victim was under 12 years old, the offense was a CIMT: “While the Court is cognizant of the fact that simple assault is generally not considered to be a CIMT, simple assault plus an aggravating factor is a CIMT.” A. 112 (internal citation omitted). The IJ cited as authority for this proposition BIA opinions involving assaults that were “aggravated” by other types of factors; specifically, they were committed with a deadly weapon, committed against a law enforcement officer, or resulted in the victim’s death. A. 112-13. Accordingly, the IJ concluded that Jean-Louis’s conviction of simple assault under subpart 2701(b)(2) constituted a CIMT, rendering Jean-Louis ineligible for cancellation of removal. The BIA affirmed. II. Discussion On appeal, Jean-Louis contends that he is eligible for discretionary cancellation of removal because his conviction of simple assault does not qualify as a CIMT. Crimes involving moral turpitude have been held to require conduct that is “inherently base, vile, or depraved.” Knapik v. Ashcroft, 384 F.3d 84, 89 (3d Cir.2004) (internal citations omitted). In determining whether a state law conviction constitutes a CIMT, the agency, and we, have historically applied a “categorical” approach, “focusing on the underlying criminal statute ‘rather than the alien’s specific act.’ ” Id. at 88 (quoting DeLeon-Reynoso v. Ashcroft, 293 F.3d 633, 635 (3d Cir.2002)). We thus “look to the elements of the statutory state offense, not to the specific facts,” reading the applicable statute to ascertain the least culpable conduct necessary to sustain conviction under the statute. Id." }, { "docid": "23533265", "title": "", "text": "assault, we cited United States v. Rebelo, 358 F.Supp.2d 400, 418-19 (D.N.J.2005), which applied the New Jersey gap-filling provision, and held that the offender had to have known that the victim was a police officer. Partyka, 417 F.3d at 413. Crucial to our analysis — and to the analysis in Rebelo upon which we relied — was the fact that the relevant conduct appeared in the definition of the offense of aggravated assault and thus was an element thereof. Id. (citing Rebelo, 358 F.Supp.2d at 418-19). Because the offender had to know that the victim was an officer, the offense reflected the requisite degree of depravity and thus constituted a CIMT. Here, by contrast, the age of the perpetrator and victim are specified not in the definition of the offense but rather under the separate statutory heading, “grading.” Regardless of how New Jersey law treats “grading” factors, their status under Pennsylvania law is clear. Where the conduct is included under a statutory section entitled, “grading,” rather than under the “definition” of the offense, the conduct is per se not an “element” of the offense. See 18 Pa.C.S. § 103 (defining the “elements” of an offense as solely conduct included in the formal definition of the offense). Accordingly, the Pennsylvania gap-filling provisions — that would ordinarily mandate a specific mental state with respect to the victim’s age — do not apply to subpart 2701(b)(2), and there is no culpability requirement as to that subpart. Based upon the foregoing analysis, we conclude that the least culpable conduct necessary for conviction under subpart 2701(b)(2) would be a reckless assault by a person over 20 years of age, where the victim, unbeknownst to the defendant, is under 12 years of age. One example might be where a reckless driver strikes a vehicle bearing a child occupant. Such a scenario does not appear to us to implicate “moral turpitude,” as that concept has been viewed by the agency and developed under our precedents. The BIA has observed that “[s]imple assaults have generally been held not to involve moral turpitude.” Matter of O — , 3" }, { "docid": "22158337", "title": "", "text": "for committing a simple assault as defined in subsection a. (1), (2) or (3) of this section upon: (a) Any law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority.... N.J. Stat. Ann. § 2C:12-lb(5)(a) (West 1995 & Supp.2004), amended by 2001 N.J. Sess. Law Serv. ch. 215, § l. Under subsection a, one is guilty of simple assault if one: (1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (2) Negligently causes bodily injury to another with a deadly weapon; or (3) Attempts by physical menace to put another in fear of imminent serious bodily injury. Id. § 2C:12-la(l)-(3). Aggravated assault on a law enforcement officer is a crime of the third degree if the officer suffers bodily injury. Id. § 2C:12 — lb(ll). Partyka pled guilty to aggravated assault in the third degree, and thus he does not contest that his assault on a law enforcement officer resulted in bodily injury. Rather, he contends that the New Jersey assault statute permits convictions in the absence of an intent to cause bodily injury, and therefore, his conviction does not evince moral turpitude. The IJ rejected Partyka’s contention, and concluded that “all the offenses” defined in the New Jersey assault statute “required at a minimum an intent to cause bodily injury.” IJ Dec. & Order at 3 n. 2. The IJ, however, misconstrued the statute, as it plainly allows convictions for recklessly or negligently causing bodily injury. The first element of aggravated assault under the New Jersey statute is “simple assault as defined in subsection a(l), (2), or (3) of this section.” N.J. Stat. Ann. § 2C:12-lb(5). The minimum culpable conduct required to commit simple assault is the negligent infliction of bodily injury with a deadly weapon under subsection a(2). A person acts negligently, according to the New Jersey criminal code, when “he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.” Id. § 2C:2-2b(4). The risk involved “must be of such a nature" }, { "docid": "16337571", "title": "", "text": "deadly weapon.” (Def.’s Br. in Opp’n to Government’s Mot. for Summ. J. at 13.) This Court disagrees. It defies contradiction that Rebelo pled guilty to, and was convicted of, aggravated assault in the third degree pursuant to N.J.S.A. 2C:12-lb. Subsection b.(5) of that statutory provision plainly defines an offense of “aggravated assault,” notwithstanding that this definition subsumes the elements of simple assault as set forth under subsection a. The State of New Jersey has determined that a simple assault on a law enforcement officer acting in the performance of his or her duties' while in uniform or exhibiting evidence of authority merits classification and punishment as an aggravated assault. It is not for this Court to second-guess the wisdom of this decision. The New Jersey statute also requires that the accused have knowledge that the person - assaulted was a law enforcement officer. Rebelo insists that the New Jersey assault statute contains no require ment that the accused know that his victim is a police officer, but in making this argument he overlooks N.J.S.A. 2C:2-2e.(3). As noted already, this provision operates to apply a culpability requirement of “knowingly” to N.J.S.A. 2C:12-lb.(5)(a), which is otherwise silent as to the required mental state. Moreover, Rebelo pleaded before the Superior Court to having knowledge that the person assaulted was a police officer. See Smriko, 387 F.3d at 283 (permitting courts to look to the record of conviction, in addition to statutory language, in determining whether a crime involves moral turpitude). Accordingly, the instant statute is congruent to the Texas statute in Danesh in respect to the requirement that the accused have knowledge of the assaulted person’s status as a law enforcement officer. See State ex rel. S.B., 333 N.J.Super. 236, 245, 755 A.2d 596, 600-01 (2000) (“[T]o constitute an aggravated assault upon a law enforcement officer, contrary to N.J.S.A. 2C:12-1(b)(5)(A), the State must prove, beyond a reasonable doubt, in addition to the other elements of the offense, that defendant knew the victim was a law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority.”)." }, { "docid": "16337572", "title": "", "text": "As noted already, this provision operates to apply a culpability requirement of “knowingly” to N.J.S.A. 2C:12-lb.(5)(a), which is otherwise silent as to the required mental state. Moreover, Rebelo pleaded before the Superior Court to having knowledge that the person assaulted was a police officer. See Smriko, 387 F.3d at 283 (permitting courts to look to the record of conviction, in addition to statutory language, in determining whether a crime involves moral turpitude). Accordingly, the instant statute is congruent to the Texas statute in Danesh in respect to the requirement that the accused have knowledge of the assaulted person’s status as a law enforcement officer. See State ex rel. S.B., 333 N.J.Super. 236, 245, 755 A.2d 596, 600-01 (2000) (“[T]o constitute an aggravated assault upon a law enforcement officer, contrary to N.J.S.A. 2C:12-1(b)(5)(A), the State must prove, beyond a reasonable doubt, in addition to the other elements of the offense, that defendant knew the victim was a law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority.”). Rebelo distinguishes New Jersey’s statute from that in Danesh on the ground that the New Jersey statute permits a person to be found guilty of aggravated assault on a law enforcement officer even if the law enforcement officer had been effectuating an unlawful arrest at the time of the assault. See State v. Casimono, 250 N.J.Super. 173, 182-85, 593 A.2d 827, 832-33 (App.Div.1991). This distinction, however, is unavailing. It is a firmly-rooted principle of New Jersey law that “a private citizen may not use force to resist arrest by one he knows or has good reason to believe is an authorized police officer engaged in the performance of his duties, whether or not the arrest is illegal under the circumstances obtaining.” State v. Koonce, 89 N.J.Super. 169, 184, 214 A.2d 428, 436 (App.Div.1965). That an arrest may be illegal does not excuse or mitigate an assault committed on the arresting officer. See State v. De Grote, 136 N.J.Super. 525, 530, 347 A.2d 23, 25 (1975) (“New Jersey does not follow the common law which permits" }, { "docid": "16337562", "title": "", "text": "degree status of Rebelo’s crime reflects a judicial finding that Officer Gramiak sustained a bodily injury. N.J.S.A. 2C:12-lb.(6) (1995) (“Aggravated assault ... under subsection b.(5) is a crime of the third degree if the victim suffers bodily injury, otherwise it is a crime of the fourth degree”). Paragraph b.(5)(a) is drafted so as to subsume the elements of paragraph a. while adding the aggravating factor that the assault was committed on a law enforcement officer. There is no express requirement of scienter in paragraph b.(5)(a). Paragraph 2C:2-2c.(3) of the New Jersey Statutés Annotated provides that “[a] statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime with the culpability defined in paragraph b.(2) of this section.” N.J.S.A. 2C:2-2c.(3). Paragraph b.(2) defines the mental state of “knowingly.” N.J.S.Á. 2C:2-2b.(2). As N.J.S.A. 2C:12-lb.(5)(a) does not clearly indicate a legislative intent to impose strict liability, that statute must be construed as requiring knowledge on the part of the accused. The.,guilty plea that Rebelo entered on July 6, 1995 is plainly consistent with this construction: the Superior Court Judge asked Rebelo* -“And you knew it, was a police officer?,” to which -Rebelo responded, “Yes.” (Deck of Joseph R..Knuth, Ex. M at 5:16-17.) The mental state of “knowingly” does not apply to every element of the crime of aggravated assault, however. Paragraph b.(5)(a) incorporates the elements of simple assault, found in paragraph a., which do specify mens rea. It is blackletter law that criminal attempt requires specific intent. See N.J.S.A. 2C:5-1 (defining criminal attempt); State v. Ambroselli, 356 N.J.Super. 377, 384, 812 A.2d 1122, 1125-26 (2003) (“Attempt expressly requires the culpability requirement of ‘purposeful’, N.J.S.A. 2C:5-la(2).... ”). Accordingly, paragraphs a.(l) and (3), pertaining to attempt, require specific intent, and it has previously been held in this district that assault accompanied by specific intent constitutes a crime involving moral turpitude. Glenside W. Corp. v. Exxon Co., 761 F.Supp. 1118, 1129-30 (D.N.J.1991) (considering N.J.S'.A. 20.12-lb.(2)). Paragraph a.(l) also admits of the possibility that the defendant acted with recklessness; however, as noted already, the distinction between specific" }, { "docid": "16337570", "title": "", "text": "of “bodily injury” would have been submitted to a grand jury for Rebelo to-be indicted for the crime of aggravated assault in the third degree pursuant to N.J.S.A. 2C:12-1.(b)(5). Following the New Jersey Supreme Court’s guidance, this Court concludes that “bodily injury” is, for all practical purposes, a legal element of Rebelo’s crime. See also Helmy v. City of Jersey City, 178 N.J. 183, 188, 836 A.2d 802, 804 (2003) (noting that the defendant “was indicted on four counts of third degree aggravated assault against Officers Collier and Moffit by attempting to cause them ‘bodily injury’ in violation of N.J.S.A. 2C:12-1b(5)(a)”). Rebelo nevertheless argues that the crime for which he was convicted was in reality nothing more than a simple assault. While conceding that he was convicted of one count of “aggravated assault” in the third degree, Rebelo contends that his crime was an aggravated assault only by virtue of the status of the person assaulted, i.e.,. a “law enforcement officer,” and “not from any additional requirement of intent, serious injury, or use of a deadly weapon.” (Def.’s Br. in Opp’n to Government’s Mot. for Summ. J. at 13.) This Court disagrees. It defies contradiction that Rebelo pled guilty to, and was convicted of, aggravated assault in the third degree pursuant to N.J.S.A. 2C:12-lb. Subsection b.(5) of that statutory provision plainly defines an offense of “aggravated assault,” notwithstanding that this definition subsumes the elements of simple assault as set forth under subsection a. The State of New Jersey has determined that a simple assault on a law enforcement officer acting in the performance of his or her duties' while in uniform or exhibiting evidence of authority merits classification and punishment as an aggravated assault. It is not for this Court to second-guess the wisdom of this decision. The New Jersey statute also requires that the accused have knowledge that the person - assaulted was a law enforcement officer. Rebelo insists that the New Jersey assault statute contains no require ment that the accused know that his victim is a police officer, but in making this argument he overlooks N.J.S.A. 2C:2-2e.(3)." } ]

[ { "docid": "23078232", "title": "", "text": "the evidence and report his findings and recommendations, upon the bankrupt’s petition for discharge and specifications in opposition thereto. Before the special master made his report, the court below sustained a demurrer to the first specification. The special master reported the finding of fact on the second specification in favor of the bankrupt, and recommended that the discharge be granted, which recommendation the court below approved, and a decree was entered to that effect, from which action this appeal was taken. In sustaining the demurrer to the first specification, the court below cited as authority the ease of In re Ford (D. C.) 14 F. (2d) 848, and held that the obtaining of a bond, even by giving an admittedly false\" statement, did not constitute, under the Bankruptcy Act (11 USCA), a bar to bankrupt’s discharge. Attorneys for appellee also rely upon In re Tanner (D. C.) 192 F. 572. The application for the discharge was passed upon after the passage of the amendment of 1926 to the Bankruptcy Act, sec-' tion 6 of which amendment reads as follows: “(3) * * * Obtained money or property on credit, or obtained an extension or renewal of credit, by making or publishing, or causing to be made or published, in any manner whatsoever, a materially false statement in writing respecting his financial condition.” 11 USCA § 32 (b),' (3). This court in Lockhart v. Edel et al., 23 F.(2d) 912, held that there is no vested right in the bankrupt to have the application for discharge passed upon as the law was at the time the suit in bankruptcy Was started, or at the time of the application for á discharge was made, but that the appliea tion should be considered in the light of the law existing at the time of the action of the court in passing on same. We therefore conclude that, under the pleadings in this case, the trial judge erred in sustaining the demurrer. It is contended on behalf of the bankrupt that the bond was not obtained for himself, but for a bank in which" } ]

[ { "docid": "4332268", "title": "", "text": "information returns were submitted, or the pertinent question in them was left unanswered, rest on materially different facts. The next question concerns the 1923 tax: but it involves the powers of the Board of Tax Appeals. The case was, in the first instance, argued and • submitted to the Board for decision without the 1923 information returns having been put in evidence. The Board handed down written findings of fact and opinion in which it held that, on the evidence before it, there did not appear to be any agreement that all taxes for 1923 would be paid by the petitioner. Before any order had been entered on- this decision, the Board on motion of the Commissioner reopened the ease and allowed him to put in evidence the 1923 information returns. In view of them, the Board reversed its decision on this point. The petitioner contends that the Board had no power to reopen the case and admit additional evidence after having rendered a decision. The statute says: “A decision of the board shall be held to be rendered upon the date that an order specifying the amount of the deficiency is entered in the records of the board.” Revenue Act 1924, § 906 (d) as added by Revenue Act 1926, e. 27,' § 1000, 44 Stat. 107 (26 USCA § 1217 note). In at least two places in tbe statutes rehearings before the Board of Tax Appeals are referred to. In each instance the words used are, “if claim therefore is asserted by the Commissioner at or before the hearing or a rehearing.” Revenue Act 1926, e. 27, § 274 (e), 26 USCA § 1048c, and Revenue Act 1928, e. 852, § 272 (e), 26 USCA § 2272 (e), In Griffiths v. Commissioner, 50 F.(2d) 782 (C. C. A. 2), it was held that a motion for rehearing, made after the formal order of the Board of Tax Appeals had been entered, tolled the limitation on petitions for review. In view of the explicit statutory provisions that the entry of the order shall be tbe date of decision, and" }, { "docid": "8645352", "title": "", "text": "Schlafly v. United States, 4 F.(2d) 195 (C. C. A. 8); First National Bank v. Hofer, 14 F.(2d) 523 (C. C. A. 8); Reiss v. Reardon, 18 F.(2d) 200 (C. C. A. 8). The remaining assignments of error challenge the correctness of the order denying a discharge, on the ground that the evidence shows that no property or credit was obtained on the false property statement, but only an extension of credit; that this was not within the purview of the statute as it read at the time when the various extensions of credit wore obtained; and that the amendment of May 27, 1926, is not applicable to transactions had before its date, and especially since the petition for discharge was filed prior to August 27, 1926, the date when that statute went into effect. This contention of appellant may be open to serious doubt. It is true that the petition for discharge was filed before August 27, 1926, but the hearings before the referee and before the District Court were held after that date. In view of this state of affairs, and especially in view of the provisions of section 18 of the Act of May 27, 1926 (11 USCA § 1, note), we incline to the view that the provisions of that act relating to discharge were applicable to the case at bar. See Royal Indemnity Co. v. Cooper (C. C. A.) 26 F.(2d) 585; Lockhart v. Edel (C. C. A.) 23 F.(2d) 912. The case of Morton v. Snider, 20 F.(2d) 469 (C. C. A. 8), is not to the contrary. In that case the petition for discharge, the hearing, and the order of discharge were all before the effective date of the Act of May 27, 1926. However, we do not find it necessary to determine the question whether the Amenda-tory Act of May 27, 1926, governs the case. This court has held that, even before that amendment took effect, the obtaining an extension of credit was an obtaining of prop erty within the meaning of the act. Morton v. Snider, supra; Erickson v. Bicknell (C." }, { "docid": "7971156", "title": "", "text": "be affirmed, and that he agreed with the master that upon the merits there is no sufficient showing to defeat the discharge. The appellants invoke provisions of the Act approved May 27, 1926, amending the Bankruptcy Act. 44 Stat. 663. As amended by that act, section 14b of the Bankruptcy Act (11 USCA § 32) contains the following: “Provided, that if, upon the hearing of an objection to a discharge, the objector shall show to the satisfaction of the court that there are reasonable grounds for believing that the bankrupt has committed any of the acts which under this paragraph (b) would prevent liis discharge in bankruptcy, then the burden of proving that ho has not committed any of such acts shall be upon the bankrupt.” Section 18 of that act (11 USCA note) reads as follows: “The provisions of this amendatory act shall govern proceedings, so far as practicable and applicable, in bankruptcy cases pending when it takes effect; but as to proceedings in cases pending when this act takes effect, to which the provisions of this amendatory act are not applicable, such proceedings shall be disposed of conformably to the provisions of said act approved July 1, 1898, and the acts amendatory thereof and supplementary thereto.” Section 20 of that act (11 USCA note) provides: “This act shall take effect and be in force on and after three months from the date of its approval.” It is to be noted that that act was not in effect when the petition for discharge was filed, when the opposition to the discharge was filed, or when the report of the referee was filed, but was in effect when the decree appealed from was rendered. To say the least, it does not clearly appear from the language of that act that its provisions were intended to govern proceedings under an application for discharge which was filed and opposed by allegations and proofs before that act was passed. But, assuming that the first above set out provision of that act was applicable to the proceeding for discharge when the court below took" }, { "docid": "8645351", "title": "", "text": "making the extension of credit; that the statement was false in material particulars,' and that the bankrupt knew that it was false; that the bank was deceived by the statement to its harm and disadvantage. The referee recommended that the discharge of the bankrupt be denied. The matter came on to be heard by the District Court upon the findings and recommendations of the referee, together with the evidence. The court affirmed the report of the referee and ordered that the discharge be denied. The present appeal followed. All but two of the assignments of error challenge the sufficiency of the evidence to sustain the findings of fact. We have examined the evidence, and, while there is a sharp conflict in the testimony on several points, yet it has been before two tribunals which have agreed in their findings of fact; and there is substantial evidence to sustain the findings. The well-established rule under such circumstances is that the findings should not be lightly set aside. The findings of fact are accordingly approved and confirmed. Schlafly v. United States, 4 F.(2d) 195 (C. C. A. 8); First National Bank v. Hofer, 14 F.(2d) 523 (C. C. A. 8); Reiss v. Reardon, 18 F.(2d) 200 (C. C. A. 8). The remaining assignments of error challenge the correctness of the order denying a discharge, on the ground that the evidence shows that no property or credit was obtained on the false property statement, but only an extension of credit; that this was not within the purview of the statute as it read at the time when the various extensions of credit wore obtained; and that the amendment of May 27, 1926, is not applicable to transactions had before its date, and especially since the petition for discharge was filed prior to August 27, 1926, the date when that statute went into effect. This contention of appellant may be open to serious doubt. It is true that the petition for discharge was filed before August 27, 1926, but the hearings before the referee and before the District Court were held after that date." }, { "docid": "23141561", "title": "", "text": "second specifications may be considered together. It may be assumed that it was the duty of the bankrupt to surrender any equity, however slight, ho may have had in the royalties, and to note it on. his schedules. However, to bar his discharge, under the provisions of section 14 (b) (1) of the Bankruptcy Act, as amended by Act May 27, 1926, 11 USCA § 32 (b) (1), for having committed an offense punishable by imprisonment, to wit, concealment of assets from his trustee, it was necessary to show that it was done knowingly and fraudulently. Bankruptcy Act, § 29 (b), as amended by Act May 27, 1926, 11 USCA § 52 (b). If fraudulent intent in that respect is not shown, the charge of having made a false oath to the schedules falls with it. This is not a ease of conspiracy or concealment begun before adjudication and continued thereafter. The bankrupt did not necessarily commit the offense of knowingly and fraudulently concealing assets from his trustee by merely omitting mention of them from his schedules. Ordinarily there can be no concealment from the trustee until he is appointed. Raehmil v. U. S. (C. C. A.) 43 F.(2d) 878. If, within a reasonable time after the trustee’s appointment, the bankrupt makes a full disclosure to Mm so that the property may be reduced to possession, there is no fraudulent concealment. Fields v. Karter (C. C. A.) 115 F. 950; Humphries v. Halley (C. C. A.) 269 F. 607. It may be presumed, from the undisputed testimony of the bankrupt and Ms counsel, that they discussed the royalties transaction with the trustee’s attorney, the testimony of the trustee that at all times the bankrupt freely gave him such information as he asked for, and that he began negotiations long before he effected the compromise by which he obtained full title to the royalties, that witliin a reasonable time after Ms appointment he was put in possession of facts by the bankrupt showing he claimed an equitable interest in the royalties. While tMs may not be conclusive, it has weight in" }, { "docid": "8645353", "title": "", "text": "In view of this state of affairs, and especially in view of the provisions of section 18 of the Act of May 27, 1926 (11 USCA § 1, note), we incline to the view that the provisions of that act relating to discharge were applicable to the case at bar. See Royal Indemnity Co. v. Cooper (C. C. A.) 26 F.(2d) 585; Lockhart v. Edel (C. C. A.) 23 F.(2d) 912. The case of Morton v. Snider, 20 F.(2d) 469 (C. C. A. 8), is not to the contrary. In that case the petition for discharge, the hearing, and the order of discharge were all before the effective date of the Act of May 27, 1926. However, we do not find it necessary to determine the question whether the Amenda-tory Act of May 27, 1926, governs the case. This court has held that, even before that amendment took effect, the obtaining an extension of credit was an obtaining of prop erty within the meaning of the act. Morton v. Snider, supra; Erickson v. Bicknell (C. C. A.) 28 F.(2d) 729. See, also, In re Wolff (D. C.) 11 F.(2d) 293; In re Waite (D. C.) 223 F. 853. Several minor matters remain for disposal. ■ Appellant’s motion to substitute as appellee M. A. Ross, as receiver of the City National Bank of Kearney, Neb., who was appointed sinee the commencement of the bankruptcy proceedings, but before the making of the order denying a discharge, is denied, as substitution is unnecessary. The appellant’s suggestion of a diminution of the record with motion to amend, we find to be without merit, and the same is denied. Appellant’s motion for leave to file newly discovered evidence is also denied. We conclude that the order denying the discharge was right and it is affirmed." }, { "docid": "4332269", "title": "", "text": "held to be rendered upon the date that an order specifying the amount of the deficiency is entered in the records of the board.” Revenue Act 1924, § 906 (d) as added by Revenue Act 1926, e. 27,' § 1000, 44 Stat. 107 (26 USCA § 1217 note). In at least two places in tbe statutes rehearings before the Board of Tax Appeals are referred to. In each instance the words used are, “if claim therefore is asserted by the Commissioner at or before the hearing or a rehearing.” Revenue Act 1926, e. 27, § 274 (e), 26 USCA § 1048c, and Revenue Act 1928, e. 852, § 272 (e), 26 USCA § 2272 (e), In Griffiths v. Commissioner, 50 F.(2d) 782 (C. C. A. 2), it was held that a motion for rehearing, made after the formal order of the Board of Tax Appeals had been entered, tolled the limitation on petitions for review. In view of the explicit statutory provisions that the entry of the order shall be tbe date of decision, and of the references to rehearings above quoted, we do not doubt that, up to the entry of the order, the Board has power to reopen a ease and revise its views and findings. Whether the Board may still do so after the entry of the formal order is a question on which we express no opinion. The final point made by the petitioner, viz., that the Board had no right to consider the final settlement proposed by the Commissioner, because the draft of it was not filed within the time fixed by the rules of the Board, is too obviously without merit to require discussion. See Board of Tax Appeals v. United States, 59 App. D. C. 161, 37 F.(2d) 442. The decision of the Board of Tax Appeals is reversed, and the ease is remanded to that Board for further proceedings not inconsistent with this opinion." }, { "docid": "7971155", "title": "", "text": "were not filed within the time allowed by the rule. The referee proceeded with the hearing and heard evidence offered by the respective parties. The referee, acting as special master, ’filed his report on September 25, 1926. That report contained expressions of opinion to the effect that the motion of the appellants that the order fixing a date for a hearing on the petition for a discharge and the opposition thereto be set aside was not well taken, and that the motion of the bankrupt to dismiss the opposition to the discharge should be sustained. That report showed that the referee found that none of the grounds of opposition to the discharge was sustained by the evidence. On the hearing by the court on that report, the exceptions thereto, and the motions filed by the appellants, the court confirmed that report and decreed the discharge of the bankrupt; the presiding judge stating in his opinion or memorandum that he was of the view that the findings and. recommendations of the master are correct and should be affirmed, and that he agreed with the master that upon the merits there is no sufficient showing to defeat the discharge. The appellants invoke provisions of the Act approved May 27, 1926, amending the Bankruptcy Act. 44 Stat. 663. As amended by that act, section 14b of the Bankruptcy Act (11 USCA § 32) contains the following: “Provided, that if, upon the hearing of an objection to a discharge, the objector shall show to the satisfaction of the court that there are reasonable grounds for believing that the bankrupt has committed any of the acts which under this paragraph (b) would prevent liis discharge in bankruptcy, then the burden of proving that ho has not committed any of such acts shall be upon the bankrupt.” Section 18 of that act (11 USCA note) reads as follows: “The provisions of this amendatory act shall govern proceedings, so far as practicable and applicable, in bankruptcy cases pending when it takes effect; but as to proceedings in cases pending when this act takes effect, to which the" }, { "docid": "22990072", "title": "", "text": "court. In the Matter of A. D. Lipman, 57 F.(2d) 1080. Thereafter the receiver filed an amended proof of claim, a hearing was had before the referee, and the claim was allowed. From an order of the District Court confirming the order of the referee allowing the claim, this appeal was taken. The question before us is whether the claim was filed in time and the amendment was properly allowed. Section 57n of the Bankruptcy Act, as amended May 27, 1926, 11 U. S. C. § 93 (n), 11 USCA § 93 (n), provides that: “Claims shall not be proved against a bankrupt estate subsequent to six months after the adjudication. * * * ” It is well settled by decisions of the Supreme Court and lower federal courts that this section does not bar amendments filed after the expiration of the statutory period. Hutchinson v. Otis, 190 U. S. 552, 23 S. Ct. 778, 47 L. Ed. 1179; In re Kessler (C. C. A.) 184 F. 51; In re Faulkner (C. C. A.) 161 F. 900; In re Basha (C. C. A.) 200 F. 951; In re Roeber (C. C. A.) 127 F. 122; Globe Indemnity Co. v. Keeble (C. C. A.) 20 F. (2d) 84; In re Rothert (C. C. A.) 61 F.(2d) 1. The courts have shown great liberality in allowing amendments, and have held that it is not essential that a document be styled a “proof of claim,” or that it be filed in the form of a claim, if it fulfills the purposes for which the filing of proof is required. In re Fant (D. C.) 21 F.(2d) 182; In re Faulkner (C. C. A.) 161 F. 900; In re Salvator Brewing Co. (D. C.) 188 F. 522. Statements in an involuntary petition in bankruptcy (In re Fant, supra) in an application for a court order for the sale of collateral (In re Faulkner, supra), and evidence given upon a hearing to determine the validity of an assignment as against other creditors of the bankrupt (In. re Salvator Brewing Co., supra) have all been held" }, { "docid": "20929730", "title": "", "text": "is precluded from a discharge thereafter. In re Cederbaum, D.C, 27 F.Supp. 1014. In the present case, such maximum time had not expired. However, we are of the opinion that this fact is not controlling, and that since not only had both the adjudication and the first meeting of creditors antedated the effective date of the amenda-tory Act, but the bankrupt has made no attempt whatsoever to obtain a discharge under either the law as it stood at the time he was adjudicated a bankrupt (June 28, 1938), and when the first meeting of his creditors was held (July 28, 1938), or after the amendment, it would not be “practicable” but on the contrary, highly impractical to say in a distinct proceeding such as the present one,- — not in the bankruptcy court at all, — that the amendatory Act should be treated as nevertheless applicable in determining the rights of third parties. This conclusion finds support in the adoption by the District Court for the Southern District of New York of a local Bankruptcy Rule (No. 19) pursuant to which the amendatory Act does not apply in cases where adjudication, without more, has occurred before the effective date of the amendatory Act. See In re Cederbaum, supra. There are a number of cases holding that where the bankrupt’s right to apply for discharge has not been barred by the provisions of the old Act at the time when the amendatory Act became effective, as was true in the present case, it was “practicable” and therefore obligatory to apply the discharge provisions of the amendatory Act. In a decision of the Circuit Court of Appeals for the Ninth Circuit, In re Wara, 116 F.2d 447, at page 448 upon facts quite similar to those before us, the Court said; “In this case, no application for a discharge was ever filed. A meeting of appellant’s creditors — of whom, it appears, there were only three — was held on March 16, 1938. Whether appellant was examined or not the record does not show. The ref eree’s certificate states that the case" }, { "docid": "18285177", "title": "", "text": "lodged in a single court. It follows that the order appealed from must be set aside and held for naught, and the eases remanded to the District Court, with directions that the injunctive orders complained of be dissolved, and that the trustee in bankruptcy be authorized to intervene in the pending state court action, if the interests of the estate so demand. It is so or-, dered. BOOTH, Circuit Judge, concurring in part. I concur in the result and also in the opinion, except that portion thereof which holds that this court has jurisdiction of the appeal under section 129, Jud. Code (28 USCA § 227). I do not think that the “hearing” before the referee in bankruptcy on the sole question of his jurisdiction was such a “hearing” as would give to the restraining order the character of an interlocutory injunction, and make it an appealable order under section 129, Jud. Code. A “hearing” to have that effect must, in my opinion, be one on the merits of the application for the injunction. This is my understanding of the holding in .the case of Western Union Telegraph Co. v. United States & Mexican Trust Co., 221 F. 545 (C. C. A. 8), cited in the majority opinion. In the ease of Field v. Kansas City Refining Co., 296 F. 800, 802 (C. C. A. 8), also cited in the majority opinion, the order appealed from was described by this court, in its opinion, thus: “Not only was the order in effect a temporary injunction, but it was such in name also.” I prefer to base the jurisdiction of this court on the ground that the present “appeal” is an equivalent of the “petition to revise” which existed, section 24b of the Bankruptcy Act, prior to the passage of the Act of May 27, 1926 (44 Stat. 664, 11 USCA § 47 (b), and which “petition to revise” was the approvéd method of bringing before the appellate court the question of the jurisdiction of the referee in bankruptcy. In re Rathman, 183 F. 913 (C. C. A. 8); In re" }, { "docid": "18285178", "title": "", "text": "is my understanding of the holding in .the case of Western Union Telegraph Co. v. United States & Mexican Trust Co., 221 F. 545 (C. C. A. 8), cited in the majority opinion. In the ease of Field v. Kansas City Refining Co., 296 F. 800, 802 (C. C. A. 8), also cited in the majority opinion, the order appealed from was described by this court, in its opinion, thus: “Not only was the order in effect a temporary injunction, but it was such in name also.” I prefer to base the jurisdiction of this court on the ground that the present “appeal” is an equivalent of the “petition to revise” which existed, section 24b of the Bankruptcy Act, prior to the passage of the Act of May 27, 1926 (44 Stat. 664, 11 USCA § 47 (b), and which “petition to revise” was the approvéd method of bringing before the appellate court the question of the jurisdiction of the referee in bankruptcy. In re Rathman, 183 F. 913 (C. C. A. 8); In re Weidhorn (C. C. A.) 253 F. 28; Id., 253 U. S. 268, 40 S. Ct. 534, 64 L. Ed. 898; Gibbons v. Goldsmith (C. C. A.) 222 F. 826; Board of Commissioners v. Keil (C. C. A.) 259 F. 76. The Act of May 27, 1926, substituted an “appeal” in place of a “petition to revise,” but, in my judgment, did not change the essential character or scope of the procedure to obtain review." }, { "docid": "17621363", "title": "", "text": "note to appellee? He obtained credit by making a materially false statement in writing when he caused to be presented to the loaner a forged promissory note. Was it, however, in respect to “his financial condition?” Congress has specifically provided for the bankrupt’s discharge of his debts after an adjudication .in bankruptcy, unless he has committed one of seven enumerated acts, any one of which will defeat his right to a discharge. The third enumerated act is described thus: “ * * * Obtained money or property on credit, or obtained an extension or renewal of eredit, by making or publishing, or causing to be made or published, in any manner whatsoever, a materially false statement in writing respecting Ms financial condition » * *» This subsection was amended May 27, 1926, and among other changes the italicised words were added. In order that the bankrupt’s false statement in writing may be a valid ground for refusing a discharge, it must appear that such written false statement be made “respecting his financial condition.” The presentation of a note apparently signed by a responsible third party would,_we think, hardly be in reference to the bankrupt’s financial conditon, as that phrase is here used. It is a representation that the bankrupt enjoys the backing of a responsible party, which fact indicates the existence of credit. However, the phrase “respecting his financial condition” limits and restricts the false statement which may defeat the discharge. In short, the false statement must be in respect to the bankrupt’s financial condition. Even before the amendment to this subdivision, the courts had given the term “materially false statement” a narrow meaning. Robinson v. J. R. Williston & Co. (C. C. A.) 266 F. 970; In re Rea Bros. (D. C.) 251 F. 431. Moreover, subdivision (2) of this section (section 14b, of the act, 11 USCA § 32 (b) (2) used the same phrase “financial condition” in such a way as to leave no room for doubt as to its meaning. Such being the fair interpretation of the statute, courts are not at liberty to extend the" }, { "docid": "2518943", "title": "", "text": "to say that the government is estopped to claim a tax, but, ordinarily, where a mistake is made in the assessment or levy or an unjust burden has been imposed, the aggrieved party, in order to obtain relief, must pursue the remedy provided by the statute.” No estoppel can be raised against the State’s enforcement of its non-dis-chargeable tax debt, consequently the referee was in error in issuing the injunction. The orders of the referee and of the district court are reversed. . As authorized by the Act of July 1, 1898, c. 511, § 1, 30 Stat. 544, as amended ; U.S.Code, Title XI, c. 1, § 1; see Title 11 U.S.C.A. § 1(10), as amended May 27, 1926, c. 406, § 1, 44 Stat. 662; June 7, 1934, c. 426, 48 Stat. 926; June 25, 1936, c. 804, 49 Stat. 1921; June 22, 1938, c. 575, § 1, 52 Stat. 840; June 28, 1946, c. 512, § 1, 60 Stat. 323; July 7, 1952, c. 579, § 1, 66 Stat. 420. Also see Title 11 U.S.C.A. § 11, as-amended May 27, 1926, c. 406, § 2, 44 Stat. 662; June 22, 1938, c. 575, § 1, 52 Stat. 842; July 7, 1952, c. 579, § 2, 66 Stat. 420, from Act of July 1, 1898, c. 541, Sec. 2, 30 Stat. 544. . As provided for by the Act of July 1, 1898, c. 541, § 57, 80 Stat. 560; Feb. 5, 1903, c. 487, § 12, 32 Stat. 799; May 27, 1926, c. 406, § 13, 44 Stat. 666; June 22, 1938, c. 575, § 1, 52 Stat. 866; see Title 11 U.S.C.A. § 93, as amended July 7, 1952, c. 579, § 14, 66 Stat. 424. . See footnote 2 supra. . Citing Salsbury Motors v. United States, 9 Cir., 1954, 210 F.2d 171, 174, certio-rari denied 347 U.S. 953, 74 S.Ct. 679, 98 L.Ed. 1099, which held after-acquired property of a discharged bankrupt not within the terms of an injunction issued by the bankruptcy court in that case. . Citing In re Devereaux, 2 Cir.," }, { "docid": "6573171", "title": "", "text": "Board of Tax Appeals rendered ? As stated above, the findings of fact were filed September 27, 1926. The order of redetermination was filed January 28, 1927. The present suit was begun January 27, 1928. The taxpayer’s contention is that the decision was rendered September 27, 1926, the date when the findings were filed. The contention of the government is that the decision was rendered January 28, 1927, the date when the order of redetermination was filed. We think the latter contention is correct. Section 906(d) of the Revenue Act of 1924, as amended by Section 1000 of the Revenue Act of 1926 (26 U.S.C.A. § 617 [c] and note), which became effective February 26, 1926, provides that a decision of the Board of Tax Appeals “shall be held to be rendered upon the date that an order specifying the amount of the deficiency is entered in the records of the Board.” The order of redetermination in the case at bar specified the deficiency as nothing. We think this statute is controlling. III. Does the decision of the Board of Tax Appeals estop the government from maintaining the present suit? When the Board of Tax Appeals was created by section 900 of the Revenue Act of 1924 (43 Stat. 336), no right of review of its decision was given by that section. But by sections 274(b) and 279(b) of that act (43 Stat. 297, 300), the right to bring an independent action was given to the Commissioner and to the taxpayer following a decision of the Board of Tax Appeals. The procedure is aptly described by the Circuit Court of Appeals of the First Circuit in Blair v. Curran, 24 F.(2d) 390, 392, in the following language: “The hearing before the Board was at that time little more than a preliminary skirmish, a run for luck. For either party, if dissatisfied with the decision, could bring a court action and try the matter de novo (Revenue Act 1924, §§ 274(b), 900(g), being 26 U.S. C.A. [§ 1049 note], § 1218; Comp.St. § 6371-5/6b(g), the Board’s findings of fact being prima" }, { "docid": "22287365", "title": "", "text": "after the return was filed; for 1918 taxes, before June 15, 1924; for 1919 taxes, before June 15, 1925. Claims might be made on or before April 1, 1925 for 1917 and 1918 taxes, on or before April 1, 1926 for. 1919 taxes; or if the waiver was extended by a new waiver, then respectively before pril 1, 1926 or April 1, 1927; or within four years after the tax was paid. 43 Stat.. 116, 302, 1115-16. See Reg. 65, Art. 1307. Thése provisions followed a similar section in the Act of March-4.' 1923, c. 276, 42 Stat. 1504-05, dealing with 1917 taxes; they were reenacted, to include , claims for the refund of 1920 and 1921 taxes,', in § 284 (g) of the Revenue Act of 1926, c. 27, 44 Stat. 9, 67. Prior to the enactment of § 281 (e) of the 1924 Act, all claims for refund had to be filed within five years from the date the return, was due, or within two years from the date the tax was paid, R. S. § 3228,' as amended by the Act of March 4, 1923, supra. See Revenue Act of. 1918, c. 18, § 252, 40 Stat. 1057, 1085; Revenue Act of'1921, c. 136, § 252, 42 Stat. 227, 268; Revenue Act of 1924, c. 234, § 1012, 43 Stat. 253, 342. Compare § 1112 of the Revenue Act of 1926, c. 27, 44 Stat. 9, 115; Minnesota Mutual Life Ins. Co. v. United States, 66 Ct. Cls. 481, 493, certiorari denied, 279 U. S. 856; Oxford Bank v. United States, 44 F. (2d) 253. The 1926 Act expressly provided that where an appeal had been taken, from a deficiency determination,- no credit or refund could thereafter be allowed except in conformance with the decision of the Board. ‘ Section 284 (d), c. 27, 44 Stat. 9, 67. And refund or credit was allowable only if the petition had been filed with the Board within four years after the tax was paid, or a timely claim for refund had been made. Section 284 (e), 44 Stat. 67." }, { "docid": "23455997", "title": "", "text": "not made as represented to the 2,500 customers of the partnership, among them appellee and objector Edel. In fact, the financial condition of the partnership precluded the conduct of the business as it was represented by the partnership to have been conducted. To prevent the discharge of a bankrupt, there must be proof of some specific ground that comes within the scope of the act of Congress. In re Johnson (D. C.) 215 F. 748. “Congress intended that the bankrupt should be discharged, unless the statutory grounds of objection to the discharge are made out clearly.” In re Morgan (C. C. A.) 267 F. 959. Provisions of the section relating to bankrupt’s discharge are not to be extended by construction, and the provisions as to discharge are to be construed liberally in favor of the bankrupt. International Shoe Co. v. Kahn (C. C. A., Fourth Circuit) 22 F(2d) 131; Remington on Bankruptcy, § 3216. “A false statement on which a bankrupt obtained money or property on credit, which will bar his discharge, under Bankruptcy Act, § 14b, subd. 3 (Comp. St. § 9598), must be a financial statement, as distinguished from a mere misrepresentation” (In re Morgan, supra), and under the amendment to the Bankruptcy Act of May 27, 1926 (11 USCA §' 32), which we think applies because in force at the time the judge below passed on the question of discharge, such statement must also be in respect to the bankrupt’s financial condition. “There was no vested right in the bankrupt to have the law stand as it was.” In re Seaholm (C. C. A.) 136 F. 144. The firm of Smith, Lockhart & Co., of which appellant was a member, and concerning all the transactions of which he was fully conversant, represented to their customers that they would purchase for the account of the customer such stock as the customer might desire to purchase, upon the receipt of a certain per cent, of the market value of said stock, the balance of the purchase price to be paid in monthly installments. These representations were made to appellee" }, { "docid": "20929729", "title": "", "text": "pending when it takes effect; but proceedings in cases then pending to which the provisions of this amendatory Act are not applicable shall be disposed of con-formably to the provisions of said Act approved July 1, 1898, and the Acts amenda-tory thereto and supplementary thereto.” Applying this provision to the facts in the present case, it is true that the bankrupt estate of David Fisher was still being administered on September 22, 1938, the effective date of the amendatory Act, and in fact the proceeding was not finally closed until July 7, 1941. However, the first and only meeting of the bankrupt’s creditors was held on July 28, 1938, that is, prior to the effective date of the amendment. Under these circumstances can it be said that it is “practicable” to have the amendatory Act govern the matter of discharge? It has been held that where the maximum time allowed for filing an application for discharge, under the law prior to the amendatory Act, has expired before the effective date of that Act, the bankrupt is precluded from a discharge thereafter. In re Cederbaum, D.C, 27 F.Supp. 1014. In the present case, such maximum time had not expired. However, we are of the opinion that this fact is not controlling, and that since not only had both the adjudication and the first meeting of creditors antedated the effective date of the amenda-tory Act, but the bankrupt has made no attempt whatsoever to obtain a discharge under either the law as it stood at the time he was adjudicated a bankrupt (June 28, 1938), and when the first meeting of his creditors was held (July 28, 1938), or after the amendment, it would not be “practicable” but on the contrary, highly impractical to say in a distinct proceeding such as the present one,- — not in the bankruptcy court at all, — that the amendatory Act should be treated as nevertheless applicable in determining the rights of third parties. This conclusion finds support in the adoption by the District Court for the Southern District of New York of a local Bankruptcy" }, { "docid": "17603594", "title": "", "text": "in fact been signed by him; hut he held that it was not material to inquire whether it was a false statement in writing within the meaning of tho statute because of the fact that Col. Johnston, upon learning of the existence of the letter, ratified all that had been done by bankrupt in obtaining credit thereunder. We need not pass upon the reasoning of either the special master or the District Judge in connection with the matter; for, assuming the statement of tho bankrupt to he false, and ignoring the alleged ratification, wo think that the statement\" relied on was not a false statement respecting the financial condition of the bankrupt or of the partnership of which he was a member. The applicable provision of the Bankruptcy Act has been materially amended by the Act of May 27, 1926, c. 406, § 6, 44 Stat. 663, 11 USCA § 32 (b) (3), cumulative pocket supplement. As it now stands that section provides that discharge shall be denied if the bankrupt has “obtained money or-property on credit, or obtained an extension or renewal of credit, by making or publishing, or causing to be made or published, in any manner whatsoever, a materially false statement in writing respecting his financial condition.” (Italics ours.) This provision of the statute as amended was before this court in Lockhart v. Edel, 23 F.(2d) 912, 913. We there held that the provisions of the section relating to the bankrupt’s discharge are not to be extended by implication, but are to be construed liberally in favor of the bankrupt, and that to bar his discharge the false statements must be with respect to his financial condition. Judge Northeott, .speaking for the court, thus tersely stated the rule which we think applicable here: “To prevent the discharge of a bankrupt, there must be proof of some specific ground that comes within the scope of the aet of Congress. In re Johnson (D. C.) 215 F. 748. 'Congress intended that the bankrupt should be discharged, unless the statutory grounds of objection to the discharge are made out clearly.’" }, { "docid": "18285157", "title": "", "text": "of them may desire. “Dated June 4th, 1930.” The referee found that there was in the property a substantial equity over and above the mortgage and the mechanic’s liens filed. On petition for review, the District Court, considering itself bound by the decision of this court in First Savings Bank & Trust Co. v. Butler, 282 F. 866, overruled the exceptions to these orders of the referee. These appeals followed. This recital is found in the brief of McDonald Manufacturing Company: “Being uncertain as to proper mode of appeal, such appeals have all been taken both by orders of the lower court and this appellate court, resulting in four eases docketed on these appeals, as appear in the caption of transcript of record herein.” Reference is made to section 24b, Bankr. Act, as amended by Act May 27, 1926, § 9 (44 Stat. 664, 11 USCA § 47(b). This controversy is not one of the cases mentioned in section 25, Bankr. Act, as amended by Act May 27, 1926, § 10 (44 Stat. 665 [11 USCA § 48]), and, therefore, did not require allowance by this court. Appellants urge that a referee m bankruptcy is without jurisdiction to restrain the prosecution of a proceeding in a state court; that such restraining order, in a proper ease, can be issued only by the judge. We think this is a correct statement of the law. General Order No. XII, par. 3 (11 USCA § 53); Gatell v. Millian (C. C. A. 1) 2 F.(2d) 365. But appellants took these orders, upon petition for review, to the district judge, by whom they were affirmed, thereby becoming, in effect, his orders. The point is,-therefore, without substance in this appeal. In re Benjamin (D. C.) 140 F. 320; In re Roger Brown & Co. (C. C. A. 5) 196 F. 758, 762. It is next suggested, though not insisted upon by counsel, that the orders, being temporary in their nature, involving primarily the overruling of pleas to the jurisdiction, are not final and, therefore, not ap•pealable. It is ordinarily true that an order of the" } ]

[ { "docid": "22699141", "title": "", "text": "with other priorities and subject to controls traditionally exercised by the States and expressly preserved by the federal statute. We granted certiorari limited to the questions of whether §§25524.1(b) and 25524.2 are ripe for judicial review, and whether they are pre-empted by the Atomic Energy Act. 457 U. S. 1132 (1982). II We agree that the- challenge to § 25524.2 is ripe for judicial review, but that the questions concerning §25524.1(b) are not. The basic rationale of the ripeness doctrine “is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Laboratories v. Gardner, 387 U. S. 136, 148-149 (1967). In Abbott Laboratories, which remains our leading discussion of the doctrine, we indicated that the question of ripeness turns on “the fitness of the issues for judicial decision” and “the hardship to the parties of withholding court consideration.” Id., at 149. Both of these factors counsel in favor of finding the challenge to the waste disposal regulations in §25524.2 ripe for adjudication. The question of pre-emption is predominantly legal, and although it would be useful to have the benefit of California’s interpretation of what constitutes a demonstrated technology or means for the disposal of high-level nuclear waste, resolution of the pre-emption issue need not await that development. Moreover, postponement of decision would likely work substantial hardship on the utilities. As the Court of Appeals cogently reasoned, for the utilities to proceed in hopes that, when the time for certification came, either the required findings would be made or the law would be struck down, requires the expenditures of millions of dollars over a number of years, without any certainty of recovery if certification were denied. The construction of new nuclear facilities requires considerable advance planning — on the order of 12 to 14 years. Thus, as in the Rail Reorganization Act Cases, 419 U. S. 102, 144 (1974), “decisions to be made now" } ]

[ { "docid": "4160608", "title": "", "text": "and, if Plaintiffs prevail, a decision enjoining portions of the Executive Order would redress that injury. See Catholic League, 624 F.3d at 1053. At this preliminary stage of the litigation, Dr ...Elshikh has accordingly carried his burden to establish standing under Article III. II. Ripeness “While standing is primarily concerned with who is a proper party to litigate a particular matter, ripeness addresses when litigation may occur.” Lee v. Oregon, 107 F.3d 1382, 1387 (9th Cir. 1997). “[I]n many cases, ripeness coincides squarely with standing’s injury in fact prong.” Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000) (en banc). In fact, the ripeness inquiry is often “characterized as standing on a timeline.” Id. “A claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’ ” Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985)). The Government argues that “the only concrete injury Elshikh alleges is that the Order ‘will prevent [his] mother-in-law’ — a Syrian national who lacks a visa— from visiting Elshikh and his family in Hawaii.” These claims are not ripe, according to the Government, because there is a visa waiver process that Elshikh’s mother-in-law has yet to even initiate. Govt. Mem. in Opp’n to Mot. for TRO (citing SAC ¶ 85), ECF No. 145. The Government’s premise ⅛ not true. Dr. Elshikh alleges direct, concrete injuries to both himself and his immediate family that are independent of his mother-in-law’s visa status. See, e.g., SAC ¶¶88-90; Elshikh Deel. ¶¶ 1, 3. These alleged injuries have already occurred and will continue to occur once the Executive Order is implemented and enforced — the injuries are not contingent ones. Cf. 281 Care Comm. v. Arneson, 638 F.3d 621, 631 (8th Cir. 2011) (“Plaintiffs’ alleged injury is not based on speculation about a particular future prosecution or the defeat of a particular ballot question.... Here," }, { "docid": "17700651", "title": "", "text": "351 (1992). Standing requires that a plaintiff establish: (1) actual or imminent, concrete injury in fact, (2) causal connection between the alleged injury and the conduct complained of, and (3) it is likely that a favorable decision will redress plaintiffs injury. Id. Because contributors are also injured by measures which prohibit candidates from accepting contributions, contributors have standing to challenge such measures. See Buckley v. Valeo, 424 U.S. at 22; Service Employees International Union v. Fair Political Practices Commission, 955 F.2d 1312, 1316 (9th Cir.), cert. denied, 505 U.S. 1230, 112 S.Ct. 3056, 120 L.Ed.2d 922 (1992); Vannatta v. Keisling, 899 F.Supp. 488, 493-494 (D.Or. 1995). However, the case or controversy requirement also bars the court from reaching matters before they are ripe. “While standing is primarily concerned with who is a proper party to litigate a particular matter, ripeness addresses when that litigation may occur.” Lee v. State of Oregon, 107 F.3d 1382, 1387 (9th Cir.), cert. denied, — U.S.-, 118 S.Ct. 328, 139 L.Ed.2d 254 (1997). The ripeness doctrine prevents “the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). Federal courts normally ought not resolve issues involving contingent future events that may not occur as anticipated or that may not occur at all. Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 580-581, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985). Ripeness requires the court to evaluate (1) whether the issues are fit for judicial decision and (2) whether the parties will suffer hardship if the court declines to consider the issues. Abbott Laboratories, 387 U.S. at 149. In its statement of uncontroverted facts Montana Right to Life Political Action Committee claims that it “may be prohibited from making any contributions to candidates for state senate and state house of representatives if candidates for these offices have already received $1100 or $1850 from other political committees.” (emphasis original). While MRLPAC italicized “any” and “other,” “may” and “if’ are the key words in the above-quoted sentence. Because the existence of" }, { "docid": "5212402", "title": "", "text": "substantial controversy, not a mere hypothetical question.” AMSAT Cable Ltd. v. Cablevision of Conn., 6 F.3d 867, 872 (2d Cir.1993). Ripeness “is peculiarly a ques■tion of timing.” Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985). A claim is not ripe if it depends upon “contingent future events that may not occur as anticipated, or indeed may not occur at all.” Id. at 580-81, 105 S.Ct. 3325. The doctrine’s major purpose “is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). “The ripeness, doctrine is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (internal quotation marks omitted). Thus, the doctrine implicates two distinct conceptual jurisdictional criteria. Simmonds v. INS, 326 F.3d 351, 356-57 (2d Cir.2003). Both [criteria] are concerned with whether a case has been brought prematurely, but they protect against prematureness in different ways and for different reasons. The first of these ripeness requirements has as its source the Case or Controversy Clause of Article III of the Constitution, and hence goes, in a fundamental way, to the existence of jurisdiction. The second is a more flexible doctrine of judicial prudence, and constitutes an important exception to the usual rule that where jurisdiction exists a federal court must exercise it. These two forms of ripeness are not coextensive in purpose. Constitutional ripeness is a doctrine that, like standing, is a limitation on the power of the judiciary. It prevents courts from declaring the meaning of the law in a vacuum and from constructing generalized legal rules unless the resolution of an actual dispute requires it. But when a court declares that a case is not prudentially ripe, it means that the" }, { "docid": "18118772", "title": "", "text": "plaintiff must suffer present or imminent injury in fact to establish Constitutional ripeness. See Wyo. Outdoor Council, 165 F.3d at 48 (“Just as the constitutional standing requirement for Article III jurisdiction bars disputes not involving injury-in-fact, the ripeness requirement excludes cases not involving present injury.”). “If a threatened injury is sufficiently ‘imminent’ to establish standing, the constitutional requirements of the ripeness doctrine will necessarily be satisfied. At that point, only the prudential justiciability concerns of ripeness can act to bar consideration of the claim.” Nat’l Treasury Employees Union v. United States, 101 F.3d 1423, 1428 (D.C.Cir. 1996). Having found both a present injury and a sufficiently imminent threatened injury to establish Plaintiffs’ standing in this case, the Court next considers the doctrine of prudential ripeness. Courts apply a two-pronged balancing test to determine whether a case is ripe for adjudication. See Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). First, a court must evaluate the “fitness of the issue for judicial decision.” Id. Second, a court must consider “the hardship to the parties of withholding [its] consideration.” Id. A case is fit for judicial resolution when it does not depend upon “contingent future events that may not occur as anticipated, or indeed may not occur at all.” Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985). The possibility of intervening changes in Plaintiffs’ circumstances which would exempt them from the individual mandate provision has been noted, but once again it does not persuade this Court that Plaintiffs’ case is nonjusticiable: [A] litigant seeking shelter behind a ripeness defense must demonstrate more than a theoretical possibility that harm may be averted. The demise of a party or the repeal of a statute will always be possible in any case of delayed enforcement, yet it is well settled that a time delay, without more, will not render a claim of statutory invalidity unripe if the application of the statute is otherwise sufficiently probable. Riva v. Com. of Mass., 61 F.3d 1003, 1011 (1st Cir.1995) (citations omitted)." }, { "docid": "5043077", "title": "", "text": "omitted). The requirement has engendered “numerous justiciability doctrines that further define the limits of federal jurisdiction,” two of which are “standing” and “ripeness.” Id. at 411. Although these concepts are sometimes confused, “standing” is concerned with who may bring an action, while “ripeness” addresses the timing of an action, i.e., when the action may be brought. Id. at 411 n. 13. In order to establish proper standing, a plaintiff must demonstrate (i) an “injury in fact,” (ii) a causal connection between the injury and the conduct complained of, and (iii) a “likelihood,” as opposed to mere “speculation,” that the injury will be “redressed by a favorable decision.” Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. 2130; Artway v. Attorney General of State of New Jersey, 81 F.3d 1235, 1246 (3d Cir.1996). The requirement of “injury in fact” has been defined as “an invasion of a legally protected interest which is (a) concrete and particularized ... and (b) ‘actual or imminent, not conjectural or hypothetical.’ ” Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130 (citations omitted). The basic rationale of ripeness is to “prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements.” Thomas v. Union Carbide Agricultural Prod. Co., 473 U.S. 568, 580, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985) (citation omitted). Courts have established a two-part test for determining ripeness; first, they consider whether the issues are fit for judicial resolution, and secondly, they examine whether withholding judicial resolution will result in hardship to the parties. Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); New Hanover Twp. v. United States Army Corps of Engineers, 992 F.2d 470, 472 (3d Cir.1993). (1) Defendant Beckman’s Motion to Dismiss In May 1997 Defendant Beckman filed a motion to dismiss this case under Fed. R.Civ.P. 12(b)(1) contending that this Court lacks jurisdiction over the instant matter because there is no “case or controversy.” Beckman argued both that Eagle lacked standing to bring the instant action and that its claims were not yet ripe because the FAA Amendment had not been formally" }, { "docid": "5989266", "title": "", "text": "and could be applied against the plaintiffs was not enough to support standing. Like the plaintiff in Hays, An-ders has not shown that he is under any real threat of being subjected to the challenged policy. Anders never contends that he has given up driving as the result of the policy. He never contends that he has been threatened with the application of the consent to search policy if he does not give up driving. Moreover, there is no evi dence to suggest that the policy ever has been or will be enforced against him. An-ders’ policy challenge seeks declaratory and injunctive relief. Time and time again our courts have stated that a person must allege a substantial likelihood that he will in the future be subjected to an allegedly illegal policy in order to have standing to seek an such relief. Smith v. Wisconsin Dept. of Agriculture, Trade, and Consumer Protection, 23 F.3d 1134, 1141 (7th Cir. 1994) (quoting Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). Contrary to Anders’ arguments, the application of the policy he challenges and any harm resulting from the existence of the policy is mere speculation and conjecture. Accordingly, he has failed to make a showing sufficient to demonstrate standing to challenge the defendant’s implied consent policy, which in turn deprives the court of the jurisdiction necessary to decide the policy challenge raised. “The constitutional component of the ripeness inquiry is often treated under the rubric of standing and, in many cases, ripeness coincides squarely with standing’s injury in fact prong.” Thomas v. Anchorage Equal Rights Com’n, 220 F.3d at 1138. Consequently, reviewing the ripeness of plaintiff’s claim adds further support to the conclusion that the facial policy challenge raised in Anders’ Complaint is lacking in justiciability. Ripeness becomes an issue when a case is anchored in future events that may not occur as anticipated, or occur at all. Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Com’n, 461 U.S. 190, 200-01, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983). The doctrine of ripeness" }, { "docid": "20396102", "title": "", "text": "will no longer have the pivotal competitive advantage from the initial solicitation. The publication of its price alone places SA-TECH in the unenviable position of competing against itself. See Bayfirst Solutions, LLC v. United States, No. 12-131C, 104 Fed.Cl. 493, 501-02, 2012 WL 1513007, at *5 (Fed.Cl. April 30, 2012) (finding that a protestor shows sufficient competitive injury if it loses a competitive advantage through the government’s decision to resolicit proposals). Based on these facts, the Court of Federal Claims correctly determined that SA-TECH showed a non-trivial competitive injury and thus had standing under 28 U.S.C. § 1491(b)(1) as an interested party. IV. Finally, the Court of Federal Claims correctly found that SA-TECH presented a claim ripe for judicial review. A claim is not ripe for judicial review when it is contingent upon, future events that may or may not occur. Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985). The purpose of the doctrine is to prevent the courts, “through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). In assessing ripeness, there, are two basic factors: “(1) the fitness of the issues for judicial decision!;] and (2) the hardship to the parties of withholding court consideration.” Abbott Labs., 387 U.S. at 149, 87 S.Ct. 1507. When a party challenges government action, the first factor becomes a question of whether the challenged conduct constitutes a final agency action. See Tokyo Kikai Seisakusho, Ltd. v. United States, 529 F.3d 1352, 1363 (Fed.Cir.2008); U.S. Ass’n of Imps. of Textiles & Apparel v. U.S. Dep’t of Commerce, 413 F.3d 1344, 1349-50 (Fed.Cir.2005). Final agency action hinges on two points: “First, the action must mark the ‘consummation’ of the" }, { "docid": "23043538", "title": "", "text": "is essential to the exercise of our judicial function. Whether or not a discriminatory barrier will be erected in the future by PUSD against any student applicant' (let alone one of the plaintiffs) in the form of a race-based admissions policy is too speculative to satisfy the plaintiffs’ burden of demonstrating a realistic and imminent danger of direct injury as a result of the PUSD policy. Accordingly, we dismiss Scott’s claims for lack of standing. B. Ripeness We are further persuaded that, even if Scott were found to have established injury in fact, we would still dismiss her equal protection claim based on the prudential considerations of our ripeness jurisprudence. “[R]ipeness doctrine is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n. 18, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993). “In ‘measuring whether the litigant has asserted an injury that is real and concrete rather than speculative and hypothetical, the ripeness inquiry merges almost completely with standing.’ ” Thomas, 220 F.3d at 1139 (quoting Gene R. Nichol, Jr., Ripeness and the Constitution, 54 U. Chi. L.Rev. 153, 172 (1987)). As a prudential matter, we will not consider a claim to be ripe for judicial resolution “if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may hot occur at all.’ ” Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (quoting Thomas v. Union Carbide Agrie. Prods. Co., 473 U.S. 568, 581, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985)); accord Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1044 (9th Cir.1999). The “basic rationale” of the ripeness doctrine is “to prevent courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Abbott Labs., 387 U.S. at 148, 87 S.Ct. 1507. To determine ripeness, we must consider “both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Id. at 149, 87 S.Ct. 1507. The prudential considerations of ripeness are" }, { "docid": "5989267", "title": "", "text": "Contrary to Anders’ arguments, the application of the policy he challenges and any harm resulting from the existence of the policy is mere speculation and conjecture. Accordingly, he has failed to make a showing sufficient to demonstrate standing to challenge the defendant’s implied consent policy, which in turn deprives the court of the jurisdiction necessary to decide the policy challenge raised. “The constitutional component of the ripeness inquiry is often treated under the rubric of standing and, in many cases, ripeness coincides squarely with standing’s injury in fact prong.” Thomas v. Anchorage Equal Rights Com’n, 220 F.3d at 1138. Consequently, reviewing the ripeness of plaintiff’s claim adds further support to the conclusion that the facial policy challenge raised in Anders’ Complaint is lacking in justiciability. Ripeness becomes an issue when a case is anchored in future events that may not occur as anticipated, or occur at all. Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Com’n, 461 U.S. 190, 200-01, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983). The doctrine of ripeness is closely related to standing in cases involving a pre-enforcement challenge; the two concepts often collapse into one issue. Smith v. Wisconsin Dept. of Agriculture, 23 F.3d at 1141. The basic “rationale of the ripeness doctrine ‘is to prevent the courts, through premature adjudication from entangling themselves in abstract disagreements.’ ” National Rifle Ass’n of America v. Magaw, 132 F.3d 272, 284 (6th Cir.1997) (citing Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 580, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985)). It is a question of timing. “There are situations where, even though an allegedly injurious event is certain to occur, the Court may delay resolution of constitutional questions until a time closer to the actual occurrence of the disputed event, when a better factual record might be available.” Blanchette v. Connecticut General Ins. Corporations, 419 U.S. 102, 143, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974); Public Affairs Associates, Inc. v. Rickover, 369 U.S. 111, 82 S.Ct. 580, 7 L.Ed.2d 604 (1962). Stated another way, a case is not ripe if further factual" }, { "docid": "11534437", "title": "", "text": "Ripeness focuses on the timing of the action rather than on the parties who bring the suit. Navegar, Inc. v. United States, 103 F.3d 994, 998 (D.C.Cir.1997). In United Steelworkers, Local 2116 v. Cyclops Corp., 860 F.2d 189, 194-95 (6th Cir.1988), we outlined the factors that a court must weigh in deciding whether to address the issues presented for review; i.e., the hardship to the parties if judicial review is denied at the pre-enforcement stage, the likelihood that the injury alleged by the plaintiff will ever come to pass, and the fitness of the case for judicial resolution at this stage. In the context of a pre-enforcement challenge, a case is ripe for review \"only if the probability of the future event occurring is substantial and of `sufficient immediacy and reality to warrant the issuance of a declaratory judgment.'\" Magaw, 132 F.3d at 284 (quoting Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969)). Thus, the ripeness requirement aims to prevent the court from entangling itself in \"abstract disagreements.\" Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 580, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985). We shall now analyze the instant case in light of the principles articulated above. B. Pursuant to section 2323.31(A) of the Columbus City Codes, \"[nb person shall sell, offer or display for sále, give, lend or transfer'ownership of, acquire or possess any assault weapon.” Violation of this ordinance by first-time offenders constitutes a first degree misdemeanor punishable by imprisonment for not more than six months and by' a fine of not more • than $1,000. C.C.C. § 2301.25. The complaint alleges that P.R.O. has large numbers of members who lawfully possessed firearms and large capacity magazines in the City before October 31,1989. According to the complaint, these members did not register such firearms between November 1-, 1989, and November 30, 1989, because they were unsure of whether these firearms were “assault weapons” as defined under the prior Columbus ordinance. The complaint asserts that these individuals continue to own and possess (either within or outside of the City) large" }, { "docid": "5212401", "title": "", "text": "w[ould] be enforced against it.” The court concluded by surmising “at least a notable chance” that NOM could avoid the political committee designation altogether by virtue of the savings clause of § 14-100.1, which exempts entities not involved with elections. II. Discussion We review de novo a district court’s determination that it lacks subject-matter jurisdiction on ripeness grounds. Connecticut v. Duncan, 612 F,3d 107, 112 (2d Cir.2010) (“A district court’s ripeness determination is ... a legal determination subject to de novo review.”); Nutritional Health Alliance v. Shalala, 144 F.3d 220, 225 (2d Cir.1998) (“Ripeness is a constitutional prerequisite to exercise of jurisdiction by the federal courts.”). In addition, we have an independent duty to consider other aspects of subject-matter jurisdiction nostra sponte. See Kalson v. Paterson, 542 F.3d 281, 286 n. 10 (2d Cir.2008) (“The fact that neither party raised a jurisdictional issue on appeal is of no matter; we are obligated to determine whether jurisdiction exists nostra sponte.”). A. Ripeness To be justiciable, a cause of action must be ripe—it must present “a real, substantial controversy, not a mere hypothetical question.” AMSAT Cable Ltd. v. Cablevision of Conn., 6 F.3d 867, 872 (2d Cir.1993). Ripeness “is peculiarly a ques■tion of timing.” Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985). A claim is not ripe if it depends upon “contingent future events that may not occur as anticipated, or indeed may not occur at all.” Id. at 580-81, 105 S.Ct. 3325. The doctrine’s major purpose “is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). “The ripeness, doctrine is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (internal quotation marks omitted)." }, { "docid": "23043539", "title": "", "text": "with standing.’ ” Thomas, 220 F.3d at 1139 (quoting Gene R. Nichol, Jr., Ripeness and the Constitution, 54 U. Chi. L.Rev. 153, 172 (1987)). As a prudential matter, we will not consider a claim to be ripe for judicial resolution “if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may hot occur at all.’ ” Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (quoting Thomas v. Union Carbide Agrie. Prods. Co., 473 U.S. 568, 581, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985)); accord Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1044 (9th Cir.1999). The “basic rationale” of the ripeness doctrine is “to prevent courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Abbott Labs., 387 U.S. at 148, 87 S.Ct. 1507. To determine ripeness, we must consider “both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Id. at 149, 87 S.Ct. 1507. The prudential considerations of ripeness are amplified where constitutional issues are concerned. Mitchell, 330 U.S. at 90-91, 67 S.Ct. 556 (“Should the courts seek to expand their power so as to bring under their jurisdiction ill-defined controversies over constitutional issues, they would become the organ of the political theories. Such abuse of judicial power would properly meet rebuke and restriction from other branches.”); see also Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 345-48, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandéis, J., concurring) (establishing the rule that it is always prudent to avoid passing unnecessarily on an undecided constitutional question); see also Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 154-55, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring) (stating that federal courts “do not review issues, especially constitutional issues, until they have to”). The Supreme Court has neatly instructed that the jurisdiction of the federal courts to hear constitutional challenges should be exercised only when “the underlying constitutional issues [are tendered] in clean-cut and concrete form.” Rescue Army v. Mun. Ct. of Los Angeles, 331 U.S." }, { "docid": "22983704", "title": "", "text": "suffer economic injury from regulation forbidden .under the Commerce Clause satisfy standing requirements of Article III); Craig v. Boren, 429 U.S. 190, 194, 97 S.Ct. 451, 455, 50 L.Ed.2d 397 (1976) (plaintiff beer vendor had standing to challenge the constitutionality of Oklahoma statute prohibiting the sale of beer to males under the age of 21 and females under the age of 18 where vendor would either sustain economic injury dr lose her license as a result of the statute’s operation); Postscript Enterprises, Inc. v. Whaley, 658 F.2d 1249, 1252 (8th Cir.1981) (appellant had sustained injury-in-fact that satisfies Article Ill’s standing requirement as the legal duties created by the ordinance were addressed directly to vendors such as appellant, who was obliged either “to heed the statutory prohibition, thereby incurring a direct economic injury through the constriction of its market, or to disobey the statutory command and suffer legal sanctions.”). B. Ripeness We must next decide whether the manufacturers’ and dealers’ challenges in Counts Three, Four, and Seven of the complaint are ripe for judicial review. The Supreme Court has stated that the basic rationale of the ripeness doctrine “is to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements.” Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 580, 105 S.Ct. 3325, 3332, 87 L.Ed.2d 409 (1985). Ripeness becomes an issue when a case is anchored in future events that may not occur as anticipated, or at all. Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm’n, 461 U.S. 190, 200-01, 103 S.Ct. 1713, 1720-21, 75 L.Ed.2d 752 (1983); Dames & Moore v. Regan, 453 U.S. 654, 689, 101 S.Ct. 2972, 2991-92, 69 L.Ed.2d 918 (1981). Ripeness is, thus, a question of timing. Regional Rail Reorganization Act Cases, 419 U.S. 102,139, 95 S.Ct. 335, 356, 42 L.Ed.2d 320 (1974). A ease is ripe for preenforcement review under the Declaratory Judgment Act only if the probability of the future event occurring is substantial and of “sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Golden v. Zwickler, 394 U.S. at 108," }, { "docid": "22808121", "title": "", "text": "requests in any way. Because the inmates’ challenge in this case does not necessarily imply the invalidity of their convictions or continuing confinement, it is properly brought under § 1983. B. The Ex Post Facto Claim We now turn to the inmates’ claim that the SOTP violates the Ex Post Facto Clause of the Constitution. The district court concluded that the inmates’ ex post facto challenge to the SOTP was not ripe because neither inmate was eligible for parole under the terms of their sentences at the time the challenges were brought. Therefore, neither inmate had suffered any harm by the speculative possibility that he might be denied parole eligibility sometime in the future. Neal and Martinez argue that their ex post facto claim is ripe because the SOTP amounts to “concrete action” by the State that will inevitably prevent them from becoming eligible.for parole by their labeling as sex offenders. We agree with the plaintiffs that their ex post facto claim is ripe. However, we conclude, based on the Supreme Court’s recent decision in Kansas v. Hendricks, - U.S. -, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), that the SOTP does not violate the Ex Post Facto Clause. Therefore, summary judgment for the defendants on this claim was proper. Ripeness is normally a “question of timing. Its basic rationale is to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements.” Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580, 105 S.Ct. 3325, 3332, 87 L.Ed.2d 409 (1985) (citations and quotations omitted). “One does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough.” Id. at 581, 105 S.Ct. at 3332 (quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 143, 95 S.Ct. 335, 358, 42 L.Ed.2d 320 (1974)). This is not a ease that involves “contingent future events that may not occur as anticipated, or indeed may not occur at all.” Id. at 580-81, 105 S.Ct. at 3332-33. Pursuant to the SOTP, Neal and Martinez have already been labeled as sex offenders," }, { "docid": "629263", "title": "", "text": "One of the opportunity to compete for contract. See Distributed Sols., Inc. v. United States, 539 F.3d 1340, 1345 (Fed.Cir.2008) (finding that loss of “the opportunity to compete” affected the plaintiffs’ direct economic interest); MORI Assocs., Inc. v. United States, 102 Fed.Cl. 503, 542 (2011) (same). Because Square One has failed to establish a redressable competitive injury resulting from GSA’s decision to reproeure the Solicitation, the court concludes that Square One is not an interested party. Accordingly, plaintiffs protest as it relates to the proposed corrective action must be dismissed because plaintiff LACKS STANDING. In the interest of completeness, the court also addresses the justiciability doctrine of ripeness, which serves as an alternative ground for dismissing plaintiffs challenge to-the proposed corrective action. 2. Ripeness “The justiciability doctrine of ripeness circumscribes the court’s review to cases that present realized rather than anticipated or hypothetical injuries.” Madison Servs., Inc. v. United States, 90 Fed.Cl. 673, 678 (2009) (citing United Public Workers of Am. v. Mitchell, 330 U.S. 75, 89-90, 67 S.Ct. 556, 91 L.Ed. 754 (1947)). “A claim is not ripe where it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all’ ” Texas Bio- & Agro-Def. Consortium v. United States, 87 Fed.Cl. 798, 804 (2009) (quoting Thomas v. Union Carbide, 473 U.S. 568, 581, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985)); see. also Commonwealth Edison Co. v. United States, 56 Fed.Cl. 652, 658 (2003) (quoting Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998)). Thus, “the ripeness doctrine ... prevents] the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies.” Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). It also operates “to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Id. at 148 — 49, 87 S.Ct. 1507." }, { "docid": "22983705", "title": "", "text": "Supreme Court has stated that the basic rationale of the ripeness doctrine “is to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements.” Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 580, 105 S.Ct. 3325, 3332, 87 L.Ed.2d 409 (1985). Ripeness becomes an issue when a case is anchored in future events that may not occur as anticipated, or at all. Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm’n, 461 U.S. 190, 200-01, 103 S.Ct. 1713, 1720-21, 75 L.Ed.2d 752 (1983); Dames & Moore v. Regan, 453 U.S. 654, 689, 101 S.Ct. 2972, 2991-92, 69 L.Ed.2d 918 (1981). Ripeness is, thus, a question of timing. Regional Rail Reorganization Act Cases, 419 U.S. 102,139, 95 S.Ct. 335, 356, 42 L.Ed.2d 320 (1974). A ease is ripe for preenforcement review under the Declaratory Judgment Act only if the probability of the future event occurring is substantial and of “sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Golden v. Zwickler, 394 U.S. at 108, 89 S.Ct. at 959-60; Armstrong World Indus. v. Adams, 961 F.2d 405, 412 (3rd Cir.1992). This court has stated that ripeness requires us to weigh several factors in deciding whether to address the issues presented for review. United Steelworkers, Local 2116 v. Cyclops Corp., 860 F.2d 189, 194 (6th Cir.1988). We must address the hardship to the parties if judicial relief is denied at the pre-enforcement stage in the proceedings. Id. at 195. We must examine the “likelihood that the harm alleged by plaintiffs will ever come to pass.” Id. at 194. And we must consider whether the ease is fit for judicial resolution at the pre-enforcement stage, which requires a determination of whether the factual record is sufficiently developed to produce a fair adjudication of the merits of the parties’ respective claims. Id. at 195. See also Brown v. Ferro Corp., 763 F.2d 798, 801 (6th Cir.) (“ripeness doctrine ... requires that the court exercise its discretion to determine if judicial resolution would be desirable under all of the circumstances”), cert. denied, 474 U.S." }, { "docid": "19726757", "title": "", "text": "violate its charter. Any claims based on the City’s failure to redistrict or add new council seats prior to the 2009 election are moot. Likewise, appellants’ claims that mid-decade redistricting will not occur because of the City’s new decision to use old census data, rather than the “best available data,” in determining its population, are not yet ripe. Ripeness is a component of subject matter jurisdiction, because a court has no power to decide disputes that are not yet justiciable. See Sample v. Morrison, 406 F.3d 310, 312 (5th Cir.2005) (per curiam). “A court should dismiss a case for lack of ‘ripeness’ when the case is abstract or hypothetical.” Monk v. Huston, 340 F.3d 279, 282 (5th Cir.2003). To determine whether claims are ripe, we evaluate (1) the fitness of the issues for judicial resolution, and (2) the potential hardship to the parties caused by declining court consideration. Texas v. United States, 497 F.3d 491, 498 (5th Cir.2007), cert. denied, — U.S. ——, 129 S.Ct. 32, 172 L.Ed.2d 18 (2008). These prongs must be balanced, Am. Forest & Paper Ass’n v. EPA, 137 F.3d 291, 296 (5th Cir.1998), and “[a] case is generally ripe if any remaining questions are purely legal ones.” New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 833 F.2d 583, 587 (5th Cir.1987). “[E]ven where an issue presents purely legal questions, the plaintiff must show some hardship in order to establish ripeness.” Cent. & S.W. Servs., Inc. v. EPA, 220 F.3d 683, 690 (5th Cir.2000). In this sense, the doctrines of ripeness and standing “often overlap in practice, particularly in an examination of whether a plaintiff has suffered a concrete injury.” Texas, 497 F.3d at 496. If the purported injury is “contingent [on] future events that may not occur as anticipated, or indeed may not occur at all,” the claim is not ripe for adjudication. Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985) (quotation omitted). We hold that the issues presented by appellants are not yet ripe for judicial review. As noted above," }, { "docid": "9649416", "title": "", "text": "on the federal claims. The court dismissed Plaintiffs’ remaining state law claims with leave to refile in state court. STANDARD OF REVIEW Athough the parties did not raise the issue of subject matter jurisdiction, “we have an independent obligation to inquire into our own jurisdiction.” Perez-Martin v. Ashcroft, 394 F.3d 752, 756 (9th Cir.2005). The existence of jurisdiction is a question of law that we review de novo. Id. DISCUSSION The federal courts are limited to deciding “cases” and “controversies.” U.S. Const, art. Ill, § 2. Two components of the Article III case or controversy requirement are standing and ripeness. Colwell v. Dep’t of Health & Human Servs., 558 F.3d 1112, 1121 (9th Cir.2009). These concepts are “closely related.” Id. at 1123. To have standing, a plaintiff must have suffered an injury in fact that is “concrete and particularized;” that can be fairly traced to the defendant’s action; and that can be redressed by a favorable decision of the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). “While standing is primarily concerned with who is a proper party to litigate a particular matter, ripeness addresses when litigation may occur.” Lee v. Oregon, 107 F.3d 1382, 1387 (9th Cir.1997). “[I]n many cases, ripeness coincides squarely with standing’s injury in fact prong.” Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir.2000) (en banc). The ripeness inquiry in some cases may therefore “be characterized as standing on a timeline.” Id. For example, “[a] claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985) (internal quotation marks omitted)). That is so because, if the contingent events do not occur, the plaintiff likely will not have suffered an injury that is concrete and particularized enough to establish the first element of standing. See" }, { "docid": "9649417", "title": "", "text": "(1992). “While standing is primarily concerned with who is a proper party to litigate a particular matter, ripeness addresses when litigation may occur.” Lee v. Oregon, 107 F.3d 1382, 1387 (9th Cir.1997). “[I]n many cases, ripeness coincides squarely with standing’s injury in fact prong.” Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir.2000) (en banc). The ripeness inquiry in some cases may therefore “be characterized as standing on a timeline.” Id. For example, “[a] claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985) (internal quotation marks omitted)). That is so because, if the contingent events do not occur, the plaintiff likely will not have suffered an injury that is concrete and particularized enough to establish the first element of standing. See Lujan, 504 U.S. at 560, 112 S.Ct. 2130. In this way, ripeness and standing are intertwined. In Auerbach v. Board of Education, 136 F.3d 104, 108-09 (2d Cir.1998), the Second Circuit applied a mixed standing/ripeness analysis to a factual scenario much like the one presented here. In Auerbach, six of the fourteen plaintiffs were current school district employees who alleged that the district’s retirement incentive policy violated the ADEA. Id. at 108. The district court rejected their claims as unripe because they had not yet retired and, therefore, had not yet been deprived of the benefits given to their retired colleagues under the policy. Id. The Second Circuit affirmed, holding: The injury alleged by the six teachers employed by the school district at the time of the commencement of this litigation was entirely speculative. When this action was initiated, these teachers had not retired and consequently, had not been denied any incentive benefits paid to their younger colleagues under the retirement plan. That is to say, they had suffered no injury in fact. These teachers" }, { "docid": "5989268", "title": "", "text": "is closely related to standing in cases involving a pre-enforcement challenge; the two concepts often collapse into one issue. Smith v. Wisconsin Dept. of Agriculture, 23 F.3d at 1141. The basic “rationale of the ripeness doctrine ‘is to prevent the courts, through premature adjudication from entangling themselves in abstract disagreements.’ ” National Rifle Ass’n of America v. Magaw, 132 F.3d 272, 284 (6th Cir.1997) (citing Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 580, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985)). It is a question of timing. “There are situations where, even though an allegedly injurious event is certain to occur, the Court may delay resolution of constitutional questions until a time closer to the actual occurrence of the disputed event, when a better factual record might be available.” Blanchette v. Connecticut General Ins. Corporations, 419 U.S. 102, 143, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974); Public Affairs Associates, Inc. v. Rickover, 369 U.S. 111, 82 S.Ct. 580, 7 L.Ed.2d 604 (1962). Stated another way, a case is not ripe if further factual development is required. New Orleans Public Service, Inc. v. Council of New Orleans, 833 F.2d 583, 587 (5th Cir.1987). A factual record is of particular significance here. In the past, the Seventh Circuit has observed that it is difficult to judge the constitutional propriety of an implied consent policy in a factual vacuum. McGann v. Northeast Illinois Regional Commuter R.R. Corp., 8 F.3d 1174, 1180 (7th Cir.1993). And facts are even more important when raised in the context of the Fourth Amendment; courts have long emphasized that the “touchstone of the Fourth Amendment is reasonableness,” which is measured in objective terms by examining the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). Because there is no evidence that defendants relied on the challenged implied consent policy in this case, nor is there evidence that they have ever enforced the policy in the past, or that they intend to in the future, there are no facts upon which to determine the propriety of the policy at" } ]

[ { "docid": "12749342", "title": "", "text": "with reference to its taxes, and that after demand and notice a payment would be made which would constitute a final settlement. In this respect the statements contained in the letter were very misleading. In most of the cases of estoppel by acquiescence it will be found that there is no direct proof that the party claiming the estoppel was misled, but this fact is found as a natural and ordinary inference from all of the circumstances of the ease, and we have made such a finding in the case now before us. It has sometimes been held that it must be shown that the party claiming the estoppel has changed his position in consequence of the acts or statements of the other party, but where acquiescence is the ground of the estoppel there is usually no occasion for a change of the position of the party claiming the estoppel and no change is made. All that is shown in these eases is that the acts of the party estopped were such as to mislead the party claiming the estoppel to continue in the course already begun, believing the same to be acceptable to the party estopped. This, we think, has been shown in this case and we have accordingly' so found. As has already been stated, when the coal company received information that a deficiency assessment had been made against the investment company, which their attorney understood was on account of profits made by the coal company, the coal company thereupon through its attorney advised the government that it agreed to the assessment and treated it as one made against itself, stating that the tax would be paid on notice and demand. The government officials would naturally conclude that- procedure on the same lines would be acceptable to the coal company, and accordingly the notice and demand was given the investment company. This again was accepted, acquiesced in by the coal company, and it made payment of the tax accordingly.. We think that when the defendant received the letter written by the coal company’s attorney its officials had the" } ]

[ { "docid": "6518660", "title": "", "text": "silence, plaintiff was led to believe that no claim would be asserted for the savings. Under these circumstances we hold that the failure of the contracting officer to make an equitable adjustment, within a reasonable time after it was apparent that savings. bad been realized and in time for tbe contractor to appeal any dispute on tbe matter to tbe bead of the department, constituted a waiver by the Government of any entitlement to tbe claimed savings. As this court stated in Branch Banking and Trust Company v. United States, 120 Ct. Cl. 72, 88, 98 F. Supp. 757 (1951), cert. denied 342 U.S. 893, when tbe Government is acting in its proprietary capacity, it may be estopped by an act of waiver in the same manner as a private contractor. Such a result is justified by tbe plain language of tbe contract and accords with tbe principles of fair dealing. Although tbe defendant contends otherwise, we have found no court decision which, after considering a similar factual situation, stands for a contrary proposition. In Appeal of Randall Construction Co., WDBCA 675, 2 CCF 1117 (1944), tbe Board of Contract Appeals held that tbe contracting officer’s delay of more than one year after the work was completed before issuing a modification reducing tbe contract price, was unreasonable, particularly since it appeared that the contractor bad settled with bis subcontractors and tbe delay bad induced tbe belief that no price adjustment was contemplated. In Topkis Brothers Company v. United States, 155 Ct. Cl. 648, 297 F. 2d 536 (1961), upon which defendant relies, defendant was permitted at tbe trial, without objection by plaintiff, to amend its answer by asserting a claim for savings realized through a deviation in the contract specifications, although the contracting officer had not issued a modification to the contract. Upon the basis of plaintiff’s failure to obj ect and without discussing the legal question presented here, the court allowed the counterclaim. Here the plaintiff has from the beginning objected strenuously to the counterclaim on the ground that it was asserted too late. Salem Products Corp. v. United" }, { "docid": "5996925", "title": "", "text": "waive conditions of a contract by spoken words, conduct, or silence where the party is under a duty to speak. In these latter two situations, if the one party’s conduct is such that the other party is misled into believing that the first party will not assert that right and in reliance on that belief materially changes his position, a waiver may occur. This instruction correctly stated Indiana law that “mere silence, acquiescence or inactivity is not waiver unless there was a duty to speak or act,” American National Bank & Trust Co. v. St. Joseph Valley Bank, 180 Ind.App. 546, 391 N.E.2d 685, 687 (1979). Indiana courts, however, have also recognized that “silence and acquiescence, when good faith requires a person to speak or act, are, in the matter of estoppel, equivalent to express affirmation.” Bahar v. Tadros, 123 Ind.App. 570, 584, 112 N.E.2d 754, 760 (1953); McNevin v. McNevin, 444 N.E.2d 320, 328 (Ind.App. 1983). While speaking in the context of estoppel rather than waiver, the clear import of the court’s statement in Bahar is that a jury may infer a duty to speak based on the parties’ conduct of their contractual relations. Magistrate Lee’s instruction properly permitted the jury to draw such an inference in this case. Canada Dry objects to the waiver instruction on the ground that there is no evidence in the record that Nehi relied to its detriment upon Canada Dry’s silence concerning Nehi’s continued operations in Lafayette and Galveston after the prescribed exercise date of Nehi’s option. We think Canada Dry’s objection is unfounded. The jury could permissibly have inferred detrimental reliance from the evidence in the record about the resources which Nehi expended in developing these markets and from Canada Dry’s exceptional delay of almost a year before indicating to Nehi its intent to terminate the territories. Hence, the jury had sufficient evidence to support its finding that Nehi’s continued sales in these territories did not constitute cause for terminating the franchise agreement. Magistrate Lee also instructed the jury that it could find a waiver of any of Nehi’s breaches upon an" }, { "docid": "1290340", "title": "", "text": "of the Interior in the period from 1913 to 1937 construed § 6 to forbid no more than sale of power for resale. IVe are asked to accept these administrative interpretations. And in addition the. City suggests that conduct of the Department, of which these interpretations were a part, is sufficient to create an estoppel against the Government. Whether the Department at any time ever did more than merely to tolerate sale and distribution of Hetch-Hetchy power by the Company as a temporary expedient is doubtful. Certain it is, however, that in 1935 the Secretary of the Interior declared the City’s disposition of the power through the Company to be a violation of § 6, demanded discontinuance of this violation without success and thereafter instigated this proceeding. We c-annot accept the contention that administrative rulings — such as those here relied on — can thwart the plain purpose of a valid law. As to estoppel, it is enough to repeat that ‘. . . the United States is neither bound nor estopped by acts of its officers or agents in entering into an arrangement or agreement to do or cause to be done what the law does not sanction or permit.’ ” [The Court here cited Utah Power & Light Co. v. United States, 243 U.S. 389, 409, 37 S.Ct. 387. 61 L.Ed. 791, referred to above.] [310 U.S. at pages 31-32, 60 S.Ct. at page 757] In my view this ruling, and the other considerations and rulings which I state above, make the estoppel contention of Santa Fe and Aztec unsupportable. I think it proper to point out further that although Santa Fe and Aztec contend that the Government is estopped, they do not consistently rely upon that position. One asserting an estoppel seeks to bind another to a representation upon which the former relied to his detriment. But Santa Fe and Aztec do not consistently urge that the Government should be bound, and that they should be allowed, to continue to count, in determining whether or not at all times since prior to 1898 there has been a" }, { "docid": "21232847", "title": "", "text": "time limit or to appeal from an adverse decision of the contracting officer, the contractor’s claim for increased costs is generally barred. Irwin & Leighton v. United States, 104 Ct.Cl. 84 (1945). The language of the Changes article provides that when a change causes a decrease in the amount due on the contract, “an equitable adjustment shall be made.” We think that this provision imposes upon the contracting officer the duty to make such an adjustment within a reasonable time, so as to afford the contractor an opportunity to appeal from an unreasonable or arbitrary decision while the facts supporting the claim are readily available and before the contractor's position is prejudiced by final settlement with his subcontractors, suppliers, and other creditors. It is undisputed that the final decision by the head of the department in this case was rendered on July 8, 1962, without prior advice or suggestion to plaintiff that the savings would be deducted from the amount due under the contract or charged against him. By the Government’s acquiescence and silence, plaintiff was led to believe that no claim would be asserted for the savings. Under these circumstances we hold that the failure of the contracting officer to make an equitable adjustment, within a reasonable time after it was apparent that savings had been realized and in time for the contractor to appeal any dispute on the matter to the head of the department, constituted a waiver by the Government of any entitlement to the claimed savings. As this court stated in Branch Banking and Trust Company v. United States, 98 F.Supp. 757, 120 Ct.Cl. 72, 88 (1951), cert. denied 342 U.S. 893, 72 S.Ct. 200, 96 L.Ed. 669, when the Government is acting in its proprietary capacity, it may be estopped by an act of waiver in the same manner as a private contractor. Such a result is justified by the plain language of the contract and accords with the principles of fair dealing. Although the defendant contends otherwise, we have found no court decision which, after considering a similar factual situation, stands for a contrary" }, { "docid": "3283468", "title": "", "text": "against one because he was silent where there was no duty on him to speak. I. S. Joseph Company, Inc. v. Citrus Feed Company, Inc., 490 F.2d 185 (5th Cir.1974); Hohenberg Bros. Company v. Killebrew, 505 F.2d 643 (5th Cir. 1974). The defendants failed to show that there was any duty on the plaintiff to speak. The plaintiff notified the defendant of its alleged infringement. There was never any notice that plaintiff had dropped his infringement claim. The plaintiff owed no duty to further notify the defendant. Silence by the plaintiff will not constitute misleading conduct. v The nature of plaintiff’s conduct was not the sort to provide a basis for a defense of equitable estoppel. In order to make out a claim for equitable estoppel the defendant must demonstrate an intentional deception. Matter of Henderson, 577 F.2d 997 (5th Cir. 1978); Minerals & Chemicals Philipp Corporation v. Milwhite Co., 414 F.2d 428 (5th Cir. 1969). In the alternative the defendant could show gross negligence amounting to constructive fraud. Id. The documentary evidence demonstrating plaintiff’s diligent efforts to retain counsel supports the conclusion that there was no fraudulent intent behind plaintiff’s silence. The second element not provided for in the defendants’ evidence is that of reasonable reliance. Mere detrimental reliance is insufficient to support a claim of estoppel. Brown v. Richardson, 395 F.Supp. 185 (W.D.Pa.1975), Reliance, to create an estoppel, must be reasonable. Twentieth Century-Fox Film Corp. v. National Publishers, Inc., 294 F.Supp. 10 (S.D.N.Y.1968). “Equitable estoppel is not available to a party who ‘conducts himself with a careless indifference to means of information reasonably at hand- . . . Bealle v. Nyden’s Incorporated, 245 F.Supp. 86, 94 (D.Conn.1965). In the present action the defendants could have easily confirmed their belief that the plaintiff had withdrawn his infringement claim. Certainly before large sums of time and money were expended, one should have more than mere silence on which to rely. If Rome did rely on plaintiff’s silence, which has not been proven, such reliance was not reasonable. The Court will not invoke the doctrine of equitable estoppel to prevent the" }, { "docid": "18712955", "title": "", "text": "manipulation is not to be tolerated, National contends that equitable estoppel should prohibit Plaintiffs “from complaining of ‘untimely’ removal, when the delay was occasioned solely through plaintiffs’ deceptive practices.” Def.’s Mem.Br. at 14. In Mississippi, the elements of equitable estoppel are conduct and acts, language or silence, amounting to a misrepresentation or concealment of material facts with knowledge or imputed knowledge of such facts, with the intent that the representation be relied upon, with the other party’s ignorance of the true facts, and reliance to his damage upon the representation or silence. Chapman v. Chapman, 473 So.2d 467, 469-70 (Miss.1985). The Court finds that all the elements of equitable estoppel are present in this case. Through initial pleadings and discovery responses, each Plaintiff concealed the material fact that he intended to seek $1,951,000 more in damages than he revealed in his original complaint. Defendant was obviously ignorant of the actual damages sought, since its only source of information on this point was Plaintiffs’ averments. Plaintiffs’ intent in this case is equally clear, from their elaborate denial of the jurisdictional amount in controversy in their original complaints, continued denial during discovery, and abrupt about-face after the running of the one year statutory limitation. Plaintiffs have offered no good faith reason for their change in the amount of damages sought. Finally, the element of reliance to the detriment of National is also clearly present. National, a foreign corporation, had a statutory right to removal, which right was denied, because of the misrepresentations of the Plaintiffs in this ease during the period when forthright pleading of damage amounts by Plaintiffs would have allowed removal of the ease. In spite of both parties’ frequent citation to Fifth Circuit cases, this Court finds from its review that the Fifth Circuit has not addressed directly the waiver of the one year time limit of section 1446(b) in a case where Plaintiffs engage in an obvious attempt to manipulate statutory rules for determining federal jurisdiction. In Marline, the court refused to apply equitable considerations even where it saw possible abuse of the time limit, but the court" }, { "docid": "11707820", "title": "", "text": "cloaked only with apparent authority cannot bind the United States for, as the court stated in United States v. Willis, 164 F. 2d 453, 455 (4th Cir. 1947)— * * * He who deals with an agent of the government must look to his authority, which will not be presumed but must be established. He cannot rely upon the scope of dealing or apparent authority as in the case of a private agent. Interstate Fire Insurance Company v. United States, 215 F. Supp. 586 (E.D. Tenn. 1963) Aff'd without opinion, 15 AFTR., 2d 017 (6th Cir. 1964) and Smale & Robinson, Inc. v. United States, 123 F. Supp. 457 (S.D. Cal. 1954), which plaintiffs cite, do not support their position. In both decisions the courts found that the government agent involved was authorized to perform the acts which were relied upon to estop the United States. Thus, in Interstate Fire Insurance Company at page 597, the court stated: It therefore becomes a question of fact whether there was a redelegation in this regard to Agent McCoy. Under the proof in this case, the Court finds that Agent McCoy was authorized to do all that he did do with regard to the reallocation of expenses for the 1955 tax return. Similarly, in Smale & Robinson, Inc., the court (at page 467) found: * * * the agent by whose conduct the Government is sought to be bound acted within the limits of authority lawfully conferred, * * * In that case the court also recognized the rule that lack of authority is fatal to any claim of estoppel based on the conduct of an agent. Since the parties have stipulated that Mr. Parker was wholly without authority to make the representations on which the plea of estoppel is based, we must conclude that the defendant is not estopped by the statements made by its agent. Plaintiffs’ second contention is also grounded on the doctrine of equitable estoppel. They assert that the distributions to plaintiffs were made in reliance on the ruling issued to Section III and that the Commissioner is now" }, { "docid": "22105430", "title": "", "text": "; Comment, 12 Ore.L.Rev. 316 (1933). See also Comment, Equitable Estoppel and the Statute of Frauds in California, 53 Cal.L.Rev. 590 (1965) ; Comment, Equitable Estoppel— Actual or Constructive Knowledge by the Person Estopped, 26 Neb.L.Rev. 461 (1947). . The “fraud” often said to be required in order to find an equitable estoppel is really only unconscientious or inequitable behavior. 3 Pomeroy § 803, at 185-186. . Id. § 808a. As Pomeroy noted, id. § 818, at 250: “Acquiescence consisting of mere silence may also operate as a true estop-pel in equity to preclude a party from asserting legal title and rights of property, real or personal, or rights of contract.” . It is long-settled that an equitable estop-pel may be invoked even where land or title thereto is involved. Kirk v. Hamilton, 102 U.S. 68, 76-78, 26 L.Ed. 79 (1880) ; Godeffroy v. Caldwell, 2 Cal. 489, 492 (1852). . Compare the general statement of this principle in 28 Am.Jur.2d Estoppel and Waiver § 112, at 769: “As some of the authorities broadly state the principle, one who knowingly and silently permits another to expend money on land under a belief that he has the right or title will not be permitted • to set up his own right, to the exclusion of the rights of the one who made such improvements.” . The Government, like a private corporation, acquires knowledge through its agents. Under well-established principles of agency, a principal is bound by the knowledge of its agent concerning a matter upon which it is the agent’s duty to give the principal information. Restatement, Agency 2d § 272. It is no defense that the agent did not, in fact, communicate his knowledge to his principal. Bowen v. Mt. Vernon Savings Bank, 70 App.D.C. 273, 105 F.2d 796 (1939). United States v. Hanna Nickel Smelting Company, 253 F.Supp. 784, 793 (D.C.Ore. 1966) aff’d, 400 F.2d 944 (9th Cir. 1968). . 72 Stat. 987. . But see United States v. Denver & R. G. W. R. Co., 16 F.2d 374 (8th Cir. 1926) ; United States v. Stinson, 125 F." }, { "docid": "23350891", "title": "", "text": "1890 and in which the ultimate decision was that this 13 acres was not such an accretion, but was an island which arose in the Iowa part of the bed of the Missouri river, and hence was not the property of the Land Company. But the claim of estoppel here is based on the tacit acquiescence of the state in the possession and claim of the plaintiffs and their grantors and on its taxation of this property as theirs. The suit and decree in Land Company v. Hausen and others was no notice that the state had not waived, and was not by its acquiescence and taxation waiving, all claim to the lands is controversy in this suit (1) because the state was not a party to that litigation-, made no claim and gave no notice of any demand therein; (2) because the 13 acres involved in that suit is not any part of the subject-matter of this suit; and (3) because the evidence in this case is that there never was any island where the 13 acres are located and notice of the claim in that suit that there was such an island would have been, as the evidence now proves, notice of a baseless claim and for that reason futile. Counsel invoke the conceded rule that there may be no estoppel of a party from asserting his titles and rights where knowledge, or the means of knowledge of them, is equally open to both parties There are, however, two reasons why this rule is not controlling in the case in hand. In the first place the rule-has an exception that the owner of a known right or title may by his representations, acts or silence so lead another to act in the belief that the owner has waived, surrendered or abandoned his right or title that he will be estopped from asserting it to the injury of him who has changed his position in reliance upon the owner’s representations, acts or silence. In the second place no one had or could have had either knowledge, or means of" }, { "docid": "6579630", "title": "", "text": "a contract deliberately misleads another party into believing that he doesn’t have to comply strictly with contractual requirements. When the other party has relied upon such a representation and gotten into a position where it is practically impossible to comply strictly, the first party may not suddenly reverse his position in order to get out of the transaction. Caldwell v. Anschutz Drilling Company, 13 Utah 2d 177, 369 P.2d 964, 966 (1962). Estoppel, on the other hand, focuses not on the obligor’s intent, but on the effects of his conduct on the obligee. Saverslak, 606 F.2d at 213. Estoppel precludes parties from asserting their rights where their actions or conduct render it inequitable to allow them to assert those rights. Hunter v. Hunter, 669 P.2d at 432. The doctrine of estoppel has application when a party, by his acts, representations, or conduct, or by his silence when he ought to speak, induces another party to believe certain facts exist and the other party relies thereon to his detriment. Id. at 432 (quoting Leaver v. Grose, 610 P.2d 1262, 1264 (Utah 1980)). Where an expression of waiver is followed by a substantial and detrimental change in the position of the other party to the contract, a court is amply justified in applying the doctrine of estoppel. Shaeffer v. Kelton, 619 P.2d at 1230. Even if the obligor has not waived a known right, he may be estopped from enforcing it. Saverslak, 606 F.2d at 213. The burden of proof and persuasion on issues of estoppel is on the party who asserts it. Corporation Nine v. Taylor, 30 Utah 2d 47, 513 P.2d 417, 420 (1973). Because the test for estoppel is objective in nature, the party asserting it must show that his reliance was reasonable under the circumstances. Big Butte Ranch, Inc. v. Holm, 570 P.2d 690, 691 (Utah 1977); Corporation Nine, 513 P.2d at 420. Estoppel may also apply where a party to a contract raises defenses other than those originally given; that is, where the other party could have remedied defects but relied on the initially stated defenses to" }, { "docid": "879999", "title": "", "text": "and Fleming v. City of Steubenville, 44 Ohio App. 121, 184 N.E. 701 (1931), citing 21 Corpus Juris 1113, the court stated: Estoppel by misrepresentation, or equitable estoppel, is defined as the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person who in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right either of contract or of remedy. This estoppel arises when one by his acts, misrepresentations, or admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts. More recently, the Ohio Supreme Court has stated: Equitable estoppel precludes a party from asserting certain facts where the party, by his conduct, has induced another to change his position in good faith reliance upon that conduct. State ex rel. Cities Service Oil Co. v. Orteca, 63 Ohio St.2d 295, 409 N.E.2d 108, 1020-21 (1980). (citing cases) The statements made in the affidavits more than meet all of the elements of equitable es-toppel. Paragraph 23 in the pension plan has enough ambiguity that we can see why the union would reasonably rely on the company’s representations that an employee’s rights would vest after 15 years of service. In any event, the existence of representations, if any, is for the jury to determine. A court can then determine whether the union reasonably and detrimentally relied on the representations of the company negotiators. . Our position is also supported by federal labor law policy. Pension plans and retirement benefits are compulsory subjects of collective bargaining. Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1189, 55 L.Ed.2d 443 (1978); NLRB" }, { "docid": "23149701", "title": "", "text": "(1961). An agent cloaked only with apparent authority cannot bind the United States for, as the court stated in United States v. Willis, 164 F.2d 453, 455 (4th Cir. 1947)— “* * * He who deals with an agent of the government must look to his authority, which will not be presumed but must be established. He cannot rely upon the scope of dealing or apparent authority as in the case of a private agent.” Interstate Fire Insurance Company v. United States, 215 F.Supp. 586 (E.D. Tenn. 1963) Aff’d without opinion, 15 AFTR, 2d 017 (6th Cir. 1964) and Smale & Robinson, Inc. v. United States, 123 F.Supp. 457 (S.D.Cal.1954), which plaintiffs cite, do not support their position. In both decisions the courts found that the government agent involved was authorized to perform the acts which were relied upon to estop the United States. Thus, in Interstate Fire Insurance Company, 215 F.Supp. at page 597, the court stated: “It therefore becomes a question of fact whether there was a redelegation in this regard to Agent McCoy. Under the proof in this case, the Court finds that Agent McCoy was authorized to do all that he did do with regard to the reallocation of expenses for the 1955 tax return.” Similarly, in Smale & Robinson, Inc., the court (at page 467 of 123 F.Supp.) found: “ * * * the agent by whose conduct the Government is sought to be bound acted within the limits of authority lawfully conferred, * * In that case the court also recognized the rule that lack of authority is fatal to any claim of estoppel based on the conduct of an agent. Since the parties have stipulated that Mr. Parker was wholly without authority to make the representations on which the plea of estoppel is based, we must conclude that the defendant is not estopped by the statements made by its agent. Plaintiffs’ second contention is also grounded on the doctrine of equitable estoppel. They assert that the distribu tions to plaintiffs were made in reliance on the ruling issued to Section III and that" }, { "docid": "23023959", "title": "", "text": "a payment would be made which would constitute a final settlement. In this respect the statements contained in the letter were very misleading. In most of the cases of estoppel by acquiescence it will be found that there is no direct proof that the party claiming the estoppel was misled, but this fact is found as a natural and ordinary inference from all of the circumstances of the case, and we have made such a finding in the case now before us. It has sometimes been held that it must be shown that the party claiming the estoppel has changed his position in consequence of the acts or statements of the other party, but where acquiescence is the ground of the estoppel there is usually no occasion for a change of the position of the party claiming the estoppel, and no change is made. All that is shown in these cases is that the acts of the party estopped were such as to mislead the party claiming the estoppel'to continue in the course already begun, believing the same to be acceptable to the party estopped. This, we think, has been shown in this case, and we have accordingly so found. As has already been stated, when the coal company received information that a deficiency assessment had been made against the investment company, which their attorney understood was on account of profits made by the coal company, the coal company thereupon through its attorney advised the Government that it agreed to the assessment and treated it as one made against itself, stating that the tax would be paid on notice and demand. The Government officials would naturally conclude that procedure on the same lines would be acceptable to the coal company, and accordingly the notice and demand was given the investment company. This again was accepted, acquiesced in by the coal company, and it made payment of the tax accordingly. We think that when the defendant received the letter written by the coal company’s attorney its officials had the right to believe that the case needed no further attention than to" }, { "docid": "11812545", "title": "", "text": "argument that they and their lawyers have relied on these representations concerning the governing agreement in bringing and maintaining this suit. “Equitable estoppel is a doctrine by which a person may be precluded by his act or conduct, or silence when it is his duty to speak, from asserting a right he otherwise would have.” In re Municipal Boundaries of City of Southaven, 864 So.2d 912, 917 (Miss.2003). Under Mississippi law, a party asserting equitable estoppel must prove (1) belief and reliance on some representation; (2) change of position as a result of the representation; and (3) detriment or prejudice caused by the change in position. Id.; see also Brock v. Hankins Lumber Co., 786 So.2d 1064, 1067 (Miss.App.2000)(defining equitable estoppel as applying where “one party by its conduct, words, or even silence, makes a representation or concealment of material facts ... with actual or imputed knowledge of the facts and with the intent that the other party rely on the representation because of the party’s ignorance of the truth,” proximately causing injury to the other party). A leading treatise has explained that ordinary principles of estoppel may be applied to the formation of contracts, and not only their interpretation: “if either party misrepresents an element of fact essential to the existence or nonexistence of a contract, and the other party justifiably relies on this representation and takes detrimental action in consequence, it will not be open to the party making the representation to show its error.” 2 Williston on Contracts § 6:63 (4th ed. 2000); see, e.g., Netco, Inc. v. Dunn, 194 S.W.3d 353, 360 (Mo.2006)(explaining that “[a] party may be estopped from questioning the existence, validity and effect of a contract by accepting the benefits of that contract”); Otero v. Wheeler, 102 N.M. 770, 701 P.2d 369, 373 (1985)(observing that “[o]ne may not partially perform when advantageous to do so, nor reap the benefits from written or unwritten contracts, and then assert absence of contract to avoid the penalties of refusing to complete performance”); Alix v. Alix, 497 A.2d 18 (R.I.1985)(asserting that “when a necessary element of a" }, { "docid": "23507841", "title": "", "text": "silence when Wilkey’s mother sought information, its temporizing response to the Commonwealth’s Attorney, and its payment of $25,000 to Fisher in settlement of a claim it had cause to suspect was false and felonious. Proof at trial that any one of these actions was taken to conceal facts of which the company was aware, coupled with proof of the other elements of estoppel, would be sufficient to estop Kentucky Central from relying on the statute of limitations. In rebuttal, Kentucky Central argues that it owed no duty to speak to Wilkey’s mother or the Commonwealth’s Attorney. It argues that under the circumstances “mere silence” cannot be the basis for equitable estoppel or fraudulent concealment. It asserts that its settlement with Fisher was appropriate and was made in good faith. A The company’s argument that as a matter of law it owed no duty to Wilkey’s mother rests on the premise that she had no interest in the policy. But this premise can only be validated by resolving all disputed facts and inferences in favor of the company, contrary to the principles governing summary judgment. Tietsort claims Wilkey gave his consent to naming Fisher the beneficiary. But according to an affidavit Wilkey’s mother filed, the man Tietsort described as Wilkey did not look like Wilkey. If Tietsort’s certifications to the company were truthful, and if the man described by Tietsort when the change of beneficiary was made was not Wilkey, Wil-key’s mother would have an interest in the policy. But these disputed facts cannot be resolved in favor of the company at this stage of the proceedings. If Wilkey’s mother had an interest in a valid policy issued to Wilkey’s estate, her interest could not be defeated by a fraudulent change of beneficiary in which the company’s agent knowingly participated. If the trier of fact resolves the facts and inferences drawn from them in favor of Wilkey’s mother, she had an interest in the policy on her son’s life and the company owed her the duty to respond to her questions about her son’s signature and Fisher’s claims. At least one" }, { "docid": "23507840", "title": "", "text": "and still be exposed to liability in the millions for wrongful issue of the policy. ****** The local prosecutor has just recently reopened a criminal investigation upon learning of the life insurance, and has asked for a copy of our file. While his subpoena powers do not reach us here in Kentucky, he might obtain the file from our investigator who happened to have it in hand while looking into the case in Roanoke, or the insurance departments of either Virginia or North Carolina could force us to produce it. The dilemma arises in that while we might like to prove that Fisher had the insured killed (thereby disqualifying him from recovery) the insured’s father and mother would then have a good tort claim against the company. Unless we could have the policy declared void for fraud, we would still have to pay the insured’s estate the policy benefits. Consequently the company purposely withheld the information it alone possessed about the policy. To establish estoppel, Wilkey’s administrator points to three actions by Kentucky Central: its silence when Wilkey’s mother sought information, its temporizing response to the Commonwealth’s Attorney, and its payment of $25,000 to Fisher in settlement of a claim it had cause to suspect was false and felonious. Proof at trial that any one of these actions was taken to conceal facts of which the company was aware, coupled with proof of the other elements of estoppel, would be sufficient to estop Kentucky Central from relying on the statute of limitations. In rebuttal, Kentucky Central argues that it owed no duty to speak to Wilkey’s mother or the Commonwealth’s Attorney. It argues that under the circumstances “mere silence” cannot be the basis for equitable estoppel or fraudulent concealment. It asserts that its settlement with Fisher was appropriate and was made in good faith. A The company’s argument that as a matter of law it owed no duty to Wilkey’s mother rests on the premise that she had no interest in the policy. But this premise can only be validated by resolving all disputed facts and inferences in favor of" }, { "docid": "23507842", "title": "", "text": "the company, contrary to the principles governing summary judgment. Tietsort claims Wilkey gave his consent to naming Fisher the beneficiary. But according to an affidavit Wilkey’s mother filed, the man Tietsort described as Wilkey did not look like Wilkey. If Tietsort’s certifications to the company were truthful, and if the man described by Tietsort when the change of beneficiary was made was not Wilkey, Wil-key’s mother would have an interest in the policy. But these disputed facts cannot be resolved in favor of the company at this stage of the proceedings. If Wilkey’s mother had an interest in a valid policy issued to Wilkey’s estate, her interest could not be defeated by a fraudulent change of beneficiary in which the company’s agent knowingly participated. If the trier of fact resolves the facts and inferences drawn from them in favor of Wilkey’s mother, she had an interest in the policy on her son’s life and the company owed her the duty to respond to her questions about her son’s signature and Fisher’s claims. At least one Virginia case, by implication, recognized an insurance company’s duty to inform an insured about the status of his policy. Breach of the duty by silence and inaction estopped the company from relying on its insured’s false answers to deny him coverage. See Employers Commercial Union Ins. Co. v. Great Am. Ins. Co., 214 Va. 410, 200 S.E.2d 560 (1973). As a practical matter, after the death of an insured, a potential beneficiary has an interest in the policy as significant as that of the insured in Employers. Relying by analogy on Employers, we conclude that a company has a duty to furnish information about a policy to a potential beneficiary unless the company has reasonable grounds for withholding the information. The reasonableness of Kentucky Central’s refusal to respond to Wilkey’s mother raises a question for the jury. Contrary to Kentucky Central’s position, Virginia has long recognized that “even silence” can trigger estoppel. See Chesapeake & O. Ry. Co. v. Walker, 100 Va. 69, 91, 40 S.E. 633, 641 (1902). In Cantrell v. Booher, 201 Va." }, { "docid": "11812544", "title": "", "text": "Agreement Plaintiffs argue that FNC should be precluded from making an argument to this Court that is belied by its own conduct and representations to the opposing litigants. As already reviewed, the conduct and representations Plaintiffs highlight are FNC’s display of a banner on the AppraisalPort site for a twenty-four day period following the introduction of the 2005 Agreement indicating that changes to the user agreement had been adopted and the display of the 2005 Agreement itself under a link entitled “User Agreement” on each user’s password-protected portion of the site. Such displays, the argument goes, represented to the user that the 2005 Agreement was, in fact, the applicable user agreement for any user that happened to log on at the time the banner was displayed or bothered to check his or her user agreement and compare it to his or her prior agreement. Such a representa tion, according to Plaintiffs, is inconsistent with FNC’s position in this litigation that the 2005 Agreement does not apply to the Arbitration Plaintiffs. Plaintiffs further claim in their argument that they and their lawyers have relied on these representations concerning the governing agreement in bringing and maintaining this suit. “Equitable estoppel is a doctrine by which a person may be precluded by his act or conduct, or silence when it is his duty to speak, from asserting a right he otherwise would have.” In re Municipal Boundaries of City of Southaven, 864 So.2d 912, 917 (Miss.2003). Under Mississippi law, a party asserting equitable estoppel must prove (1) belief and reliance on some representation; (2) change of position as a result of the representation; and (3) detriment or prejudice caused by the change in position. Id.; see also Brock v. Hankins Lumber Co., 786 So.2d 1064, 1067 (Miss.App.2000)(defining equitable estoppel as applying where “one party by its conduct, words, or even silence, makes a representation or concealment of material facts ... with actual or imputed knowledge of the facts and with the intent that the other party rely on the representation because of the party’s ignorance of the truth,” proximately causing injury to the" }, { "docid": "754959", "title": "", "text": "1979 that deferments for a residency in surgery were available and that these residencies were acceptable to the NHSC. (Affidavit, Swanson.) Defendant asserts that he relied upon such representations in planning his career in surgery and such representations “instilled in Defendant the expectancy that he could serve as a surgeon.” Defendant contends that the government should now be estopped from denying such representations. Aside from the question of whether such unnamed individuals are agents of the Secretary, estoppel is rarely, if ever, a valid defense against the government absent proof of some affirmative misconduct by a government agent. See Heckler v. Community Health Services of Crawford Co., 467 U.S. 51, 104 S.Ct. 2218, 2224, 81 L.Ed.2d 42 (1984) (hereinafter referred to as Heckler); United States v. River Coal Company, Inc., 748 F.2d 1103, 1108 (6th Cir.1984); Schweiker v. Hansen, 450 U.S. 785, 788, 101 S.Ct. 1468, 1470, 67 L.Ed.2d 685 (1981). In order to prevail on the estoppel argument, the Defendant would be required to demonstrate at trial that at least the traditional elements of estoppel are present. Heckler, 104 S.Ct. at 2224. The Supreme Court outlined the elements of traditional estoppel in the recent case of Heckler v. Community Health Services of Crawford Co., supra, as follows: If one person makes a definite misrepresentation of fact to another person having reason to believe that the other person will rely upon it and the other in reasonable reliance upon it does an act ... the first person is not entitled (b) to regain property or its value that the other acquired by the act, if the other in reliance upon the misrepresentation and before discovery of the truth has so changed his position that it would be unjust to deprive him of that which he thus acquired. 104 S.Ct. at 2223 (quoting Restatement (Second) of Torts § 894(1) (1977). The Court in Heckler went on to explain that “the party claiming the estoppel must have relied on its adversary’s conduct ‘in such a manner as to change his position for the worse,’ and that reliance must have been reasonable in" }, { "docid": "2886235", "title": "", "text": "1421-22 (3d ed. 1905). The standard for a valid estoppel was articulated by this circuit in Bergeron v. Mansour, 152 F.2d 27, 30 (1st Cir. 1945): “A person is estopped from denying the consequences of his conduct where that conduct has been such as to induce another to change his position in good faith or such that a reasonable man would rely upon the representations made.” While we recognize that there still is some question as to whether the doctrine of equitable estoppel can apply to the government at all and, if it can, under what circumstances, we avoid that bram-blebush by assuming the application of the doctrine if the facts warrant it. Appellants’ claim of equitable estoppel is based on the assertion that any prosecution of them was unfair because they unsuccessfully sought from the Commission a definitive status of LRF vis-a-vis option. The basic fallacy of appellants’ position is that there was no misleading conduct or misrepresentations on the part of the Commission. Failure to respond to inquiries does not amount to estoppel conduct. Appellants would have us ascribe to the Commission the interpretation, really wishful thinking, that appellants put on the Commission’s silence. While in some instances silence may reasonably induce reliance, this is not such a situation. What appellants did was try to cover the uncertain legality of the LRF operation by inquiring as to its status. Appellants went ahead with an operation knowing full well that it was probably , illegal or, at the optimum, that its legality was doubtful. They cannot convert the Commission’s silence into approval. They took their chances and must suffer the consequences. The Sixth Circuit confronted a similar argument in United States v. Mattucci, 502 F.2d 883 (6th Cir. 1974). Defendants claimed that government agents’ failure to advise them of the illegality of the Barbut game (a gambling game) gave rise to estop-pel. Rejecting that argument, the court stated: Finally, appellants claim that they were not given fair warning of the illegality of their business, and therefore, the government ought to have been es-topped from indicting and prosecuting them. In" } ]

[ { "docid": "12012272", "title": "", "text": "process of law.” See Machibroda v. United States, 1962, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473; Com. of Pennsylvania ex rel. Herman v. Claudy, 1956, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126; Wright v. Dickson, 9 Cir. 1964, 336 F.2d 878; United States v. Tateo, D.C.N.Y.1963, 214 F.Supp. 560. In reply to appellant’s arguments, the State of Florida contends that the words “say nothing” contained in the pro forma judgment of the trial court have an irrefutable and irrebuttable quality. But petitioner contends precisely that the judgment is false because he did try to withdraw his plea of guilty at the time of sentencing and that there were witnesses to his vain effort. This contention is neither verifiable nor disprovable by the present record. We do not in the pro forma judgment have a live transcription or reproduction of occurrences. We have a judgment but no stenographic record of its forbears. We have a machined portion of a judgment which may or may not have relevance to reality. There is no sentient or cerebrated conclusion by the court that Haaeks was silent. The “say nothing” words attributed to Haaeks are not the result of conscious and adverted screening. There is no abhorrence of considering in habeas corpus facts de hors the record. Randel v. Beto, 5 Cir. 1965, 354 F.2d 496, 503. In Wright v. Dickson, 9 Cir. 1964, 336 F.2d 878, 883, the Court said: “Recitals of fact in state court records, including opinions, may be relied upon in a show cause proceeding if the accuracy of the recitals is not disputed; and if a decision follows from these uncontested facts as a matter of law, no evidentiary hearing is required. However, if a petitioner, or the state, contests the facts recited in the records, they ‘must be given the opportunity to present other testimonial and documentary evidence relevant to the disputed issues.’ Townsend v. Sain, 372 U.S. 293, 322, 83 S.Ct. 745, 762 [9 L.Ed.2d 770] (1963). * * * [additional cases cited in a footnote].” Florida provides criminal proceedings to determine whether the" } ]

[ { "docid": "11813821", "title": "", "text": "authorities criticizing or supporting plea bargaining is contained in Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 223 A.2d 699 (1966). The practice, when restricted by prudent safeguards, is approved in Institute of Judicial Administration, ABA, Standards Relating to Pleas of Guilty, Part III (tentative draft 1967); Note, Guilty Plea Bargaining: Compromises by Prosecutors to Secure Guilty Pleas, 112 U.Pa.L.Rev. 865 (1964). The practice is criticized in Cur-lee, Criminal Law and Procedure, 1966-67 Survey of South Carolina Law, 19 S.C.L.Rev. 30, 34 (1967). . Bailey v. MacDougall, 247 S.C. 1, 145 S.E.2d 425 (1965), cert. denied, 384 U.S. 962, 86 S.Ct. 1589, 16 L.Ed.2d 674 (1966). . Cf. Shelton v. United States, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958), reversing on confession of error 246 F.2d 571 (5th Cir. 1957); Edgerton v. State of North Carolina, 315 F.2d 676 (4th Cir. 1963); United States ex rel. Elksnis v. Gilligan, 256 F.Supp. 244, 253 (S.D.N.Y.1966) (dictum). . “Courts have not considered it necessary to inform the defendant of possible collateral consequences when such consequences result from subsequent criminal convictions of the defendant or do not relate directly to the charge to which the defendant pleads guilty.” Note, Guilty Plea Bargaining: Compromises by Prosecutors to Secure Guilty Pleas, 112 U.Pa.L.Rev. 865, 875 (1964). . Fed.R.Crim.P. 11, as amended in 1966, requires the court to determine this even though the defendant is represented by counsel. Many states also impose such a duty. Others hold the requirement is satisfied where counsel sufficiently informs the accused. Note, Criminal Procedure — Duty of the Trial Judge to Ad vise a Defendant of the Consequences of a Guilty Plea, 19 S.C.L.Rev. 261 (1967), Annot. 97 A.L.R.2d 549 (1964). We decline to follow McGrady v. Cunningham, 296 F.2d 600, 96 A.L.R.2d 1286 (4th Cir. 1961), cert. denied, 369 U.S. 855, 82 S.Ct. 944, 8 L.Ed.2d 14 (1962), Now, Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), would require a plenary hearing upon the petitioner’s allegations. . Institute of Judicial Administration, ABA, Standards Relating to Pleas of Guilty § 1.5," }, { "docid": "2231723", "title": "", "text": "was an indigent. . The burdens of these matters may be portrayed by the history of the landmark case of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). In 1955 Townsend was convicted of first degree murder upon jury trial held in the Criminal Court of Cook County, Illinois. I-Iis conviction was affirmed by the Supreme Court of Illinois, and later the United States Court of Appeals for the Seventh Circuit affirmed a District Court denial of a habeas corpus petition. Now, fifteen years after the original trial, Townsend’s conviction awaits finality. In the intervening years Townsend’s charges of constitutional deprivation have been considered and reconsidered approximately 20 times by various levels of state and federal judicial authorities. We set them out as follows: Conviction affirmed, People v. Townsend, 11 Ill.2d 30, 141 N.E.2d 729, 69 A.L.R.2d 371 (1956), cert. den., Townsend v. People of State of Illinois, 355 U.S. 850, 78 S.Ct. 76, 2 L.Ed.2d 60 (1957); post-conviction relief denied in Illinois state trial and Supreme Courts, cert. den., Townsend v. People of State of Illinois, 358 U.S. 887, 79 S.Ct. 128, 3 L.Ed.2d 115 (1958); post-conviction relief in federal District Court denied, appeal dismissed, United States ex rel. Townsend v. Sain, 265 F.2d 660 (CA 7, 1958), rev’d and remanded, Townsend v. Sain, 359 U.S. 64, 79 S.Ct. 655, 3 L.Ed.2d 634 (1959); petition dismissed in District Court, aff’d. United States ex rel. Townsend v. Sain, 276 F.2d 324 (CA 7, 1960), cert. granted, Townsend v. Sain, 365 U.S. 866, 81 S.Ct. 907, 5 L.Ed.24 859 (1961), rev’d. and remanded, Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); decision of District Court ordering new trial rev’d., United States ex rel. Townsend v. Ogilvie, 334 F.2d 837 (CA 7, 1964), cert. den. Townsend v. Ogilvie, 379 U.S. 984, 85 S.Ct. 683, 13 L.Ed.2d 574 (1965); motion to allow amendment of petition denied in District Court, aff’d., United States ex rel. Townsend v. Ogilvie, 360 F.2d 925 (CA 7, 1966), cert. den., Townsend v. Ogilvie, 385 U.S. 938, 87 S.Ct." }, { "docid": "11159222", "title": "", "text": "court immediately prior to imposition of sentence he has stated he was “well aware of the offenses, the penalties prescribed therefor and his right to trial by jury” and that it was “still his desire that his pleas of guilty to the counts be accepted by the court,” as recited in the journal entry of judgment, preclude a contention by Tibbett that the pleas of guilty entered for him by his counsel were without his consent. Moreover, there was a presumption that in entering pleas of guilty, Tibbett’s court-appointed counsel acted properly and with Tibbett’s consent. Accordingly, we conclude that if the court reporter had made a complete record of the proceedings of December 17 and December 20, 1957, and had transcribed the same, on this record there is no basis for a contention that such transcript would have contradicted the facts recited in the transcript which the court reporter did make, or the recitals of fact set forth in the journal entry judgment filed in the state court. We conclude that the record of the proceedings of December 17 and December 20, 1957, set forth in the state court journal entry, which was available to Tibbett, fully met the requirements of the Fourteenth Amendment that he be accorded the equal protection of the laws. Affirmed. . The journal entry was approved by Smith, as counsel for Tibbett, and by the County Attorney. . See Thomas v. Hunter, 10 Cir., 153 F.2d 834. . Tibbett further testified that when the pleas of guilty were entered he did not say anything. . Griffiths v. United States, Ct.Cl., 172 F.Supp. 691, certiorari denied 361 U.S. 865, 80 S.Ct. 128, 4 L.Ed.2d 107; Schuble v. Youngblood, 225 Ind. 169, 73 N.E.2d 478; People v. Fanning, Co.Ct., 73 N.Y.S.2d 68; State v. Rinaldi, 58 N.J.Super. 209, 156 A.2d 28; State v. Whitaker, Mo., 312 S.W.2d 34. . Dorsey v. Gill, 80 U.S.App.D.C. 9, 148 F.2d 857, 876, certiorari denied 325 U.S. 890, 65 S.Ct. 1580, 89 L.Ed. 2003." }, { "docid": "16005032", "title": "", "text": "prejudice was before the trial judge after the jury was impaneled. At that time, Judge Luedke denied petitioner’s motion to exclude those spectators from attending the trial or for wearing their buttons. The determination of a spectator’s prejudicial effect upon the jury lies within the sound discretion of the trial judge who by viewing the proceedings is more competent to pass on the issue. See United States v. Johnson, 618 F.2d 60 (9th Cir.1980). Therefore, a federal evidentiary hearing is not required on this issue. We have been unable to find any indication in the record that no spectators wearing buttons were in attendance during trial. It appears that the record is simply silent on this issue. STANDARD OF REVIEW The District Court’s decision to deny a petition for writ of habeas corpus is generally reviewed de novo. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986), cert. denied, — U.S.-, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987). To the extent it is necessary to review findings of fact, the clearly erroneous standard applies. Id. A habeas corpus petitioner is entitled to an evidentiary hearing if he has alleged facts which, if proven, would entitle him to relief and he did not receive a full and fair evi-dentiary hearing in a state court. Townsend v. Sain, 372 U.S. 293, 312-13, 83 S.Ct. 745, 756-57, 9 L.Ed.2d 770 (1963); see Bashor v. Risley, 730 F.2d 1228, 1233 (9th Cir.), cert. denied, 469 U.S. 838, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984). If the merits of a factual issue were determined in state court, the determination is entitled to a presumption of correctness unless one of the factors listed in 28 U.S.C. section 2254(d) exists, indicating a denial of due process or lack of support in the record for the state court findings. See Bashor, 730 F.2d at 1232-33. Thus, if the Montana trial court had determined that the presence of the women with buttons would not deprive the defendant of a fair trial, or had questioned the jurors to determine whether they might be swayed by the presence of the women," }, { "docid": "14305684", "title": "", "text": "cert. den., 383 U.S. 961, 86 S.Ct. 1232, 16 L.Ed.2d 304: “The plea of guilty constituted a waiver of the alleged prior violation of appellant’s constitutional rights. United States ex rel. Staples v. Pate, 332 F.2d 531 (7th Cir. 1964); Thomas v. United States, 290 F.2d 696, 697 (9th Cir. 1961).” Under all the circumstances, we find that the District Judge was correct in denying the petitions without a hearing. See Section 4, infra. 3. Violation of Tennessee procedure. The evidence given to the jury' consisted mainly of a recital of facts made by the Tennessee District Attorney General. Counsel for each petitioner had stipulated to the correctness of such recital. Petitioners complain that only by producing before the jury eye witness or other direct evidence of guilt could the Tennessee procedure be obeyed. In affirming dismissal of the state habeas corpus proceeding, the Supreme Court of Tennessee discussed, without finding fault, the procedure followed in the State Court. We are of the opinion that if there was less than satisfactory compliance with Tennessee law in submitting evidence to the jury, it did not deny petitioners fair treatment or any fundamental constitutional right. Violation of a state statute does not, by itself, constitute deprivation of any right granted by the United States Constitution. Snowden v. Hughes, 321 U.S. 1, 11, 64 S.Ct. 397, 88 L.Ed. 497, 504 (1944); Beck v. Washington, 369 U.S. 541, 554-555, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962) ; Townsend v. Sain, 372 U.S. 293, 311-312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). 4. Evidentiary hearing. We are mindful of the requirements of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), but upon consideration of the whole record before the District Judge, we do not think there was need for an evidentiary hearing. Petitioners presented only one claim wherein it was necessary for the District Judge to resolve a factual dispute — the claim of involuntary pleas of guilty. From the record before him he could find that the petitioners had received a full and fair hearing by the trial court" }, { "docid": "886750", "title": "", "text": "agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit— $ $ H ^ $ “(3) that the material facts were not adequately developed at the State court hearing * * Section 2254(d) codifies the requirements established for State post-conviction proceedings in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). See White v. Swenson, W.D.Mo., 1966, 261 F.Supp. 42, 60-62. When a State prisoner petitioning for habeas corpus in Federal court has exhausted his State remedies, and it is made to appear that at the prior State hearing on his contentions the material facts were not adequately developed, the petitioner is entitled to an evidentiary hearing in the Federal court. Townsend v. Sain, supra, 372 U.S. at 317, 83 S.Ct. at 759; Porter v. Sinclair, 5 Cir., 1967, 389 F.2d 277, 279. . 172 S.E.2d at 662. . In the record are copies of two documents styled “Affidavit and Accusation,” each of which contains on what appears to be the back cover the following recitation: “Defendant, Perry Goodwin, waives arraignment and indictment by grand jury and enters plea of guilty, on all counts, this the 18 day of December, 1959.” (The italicized portions are typed or written by hand; the remainder is printed on the form.) Beneath this recitation are two signature lines. On the one designated “Solicitor General” appears the signature “John H. Land”; on the other, designated “Defendant’s Attorney,” the signature “Perry Goodwin” appears. The documents pertaining to the 1959 proceedings contain no other relevant information. The Supreme Court, on similar facts, has held that “the certified records * * * raise a presumption” that the accused was not represented by counsel. Burgett v. State of Texas, 389 U.S. 109, 114, 88 S.Ct. 258, 261-262, 19 L.Ed.2d 319 (1967). . See, e. g., Chandler v. Fretag, 348 U.S. 3, 4-6, 75 S.Ct. 1, 2-4, 99 L.Ed. 4 (1954). Most of the developments in this" }, { "docid": "22422700", "title": "", "text": "L.Ed. 830 (1941); United States v. Tateo, 214 F.Supp. 560 (S.D.N.Y.1963). When the petition in support of an application for habeas corpus re veals upon its face that it is defective as a matter of law, the habeas court may dismiss the application without a hearing. See 28 U.S.C. § 2243; Walker v. Johnston, 312 U.S. at 284, 61 S.Ct. at 578, 85 L.Ed. 830. Moreover, a hearing is not required when the habeas court has before it a full and uncontested record of state proceedings which furnishes all of the data necessary for a satisfactory determination of factual issues. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Machibroda v. United States, 368 U.S. at 494, 82 S.Ct. at 513-514, 7 L.Ed.2d 473; Walker v. Johnston, 312 U.S. at 284, 61 S.Ct. at 578, 85 L.Ed. 830; Grundler v. North Carolina, 283 F.2d 798 (4th Cir., 1960); United States ex rel. Wade v. Jackson, 256 F.2d 7 (2d Cir.), cert. denied, 357 U.S. 908, 78 S.Ct. 1152, 2 L.Ed.2d 1158 (1958). When, however, petitioner alleges that a guilty plea entered by him was the product of deceit, promise, or threat, and facts are specifically set forth which support that allegation and which create issues incapable of resolution by a simple examination of the files and records before the federal District Court, that court must grant the petitioner a hearing. Certainly, petitioner cannot be denied a hearing merely because the facts asserted by him are contradicted by the answer of the State’s prosecuting officers, for it is this denial which creates the factual issue to be resolved. Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 123, 76 S.Ct. 223, 100 L.Ed. 126 (1956); Reickauer v. Cunningham, 299 F.2d 170 (4th Cir.), cert. denied, 371 U.S. 866, 83 S.Ct. 127, 9 L.Ed.2d 103 (1962) . Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963) , sets out the basic principle: “Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if" }, { "docid": "10639953", "title": "", "text": "the petitioner testified he had been given only one evidentiary hearing and had testified but once in the State Court proceedings. The official records, admitted in evidence without objection, show that this testimony is erroneous. . The rule seems to be that, absent any charge of fraud, the journal entry records of the proceedings in the State Court at the time of the impaneling of the jury and the consent verdict entered by the defendant import verity and are not open to challenge in a collateral proceeding such as this by parol testimony. Tibbett v. Hand (C.C.A.Kan.1961) 294 F.2d 68, 72; Thomas v. Hunter (C.C.A. Kan.1946) 153 F.2d 834, 838; State v. Mayfield (1959) 235 S.C. 11, 23, 109 S.E.2d 716, cert. den. 363 U.S. 846, 80 S.Ct. 1616, 4 L.Ed.2d 1728; cf., however, Haacks v. Wainwright (C.C.A.Fla.1968) 387 F.2d 176, 178. See, also, Townsend v. Sain (1963) 372 U.S. 293, 322, 83 S.Ct. 745, 762, 9 L.Ed. 2d 770: “ * * * the state-court record is competent evidence, and either party may choose to rely solely upon the evidence contained in that record * * By reason of later admissions of the petitioner, this issue loses any significance. . It would not have been of moment whether witnesses were called by the State or not, since the petitioner entered what was in effect a guilty plea. United States ex rel. Smith v. Russell (C.C.A. Pa.1966) 359 F.2d 795, 796, cert. denied 385 U.S. 876, 87 S.Ct. 154, 17 L.Ed.2d 103. In such circumstances, the defendant “cannot later be heard to contend that there was no evidence offered.” Bartholomew v. United States (C.C.A. Minn.1961) 286 F.2d 779, 781. Actually, his complaint on this score seems to have been that the person he described as the State’s “No. 1 witness” did not appear. This “No. 1 witness”, it appears from the petitioner’s testimony, was the complainant’s mother and she became the “No. 1 witness”, not because she knew more about the alleged assault than anyone else but because she was listed first on the group of witnesses endorsed on the" }, { "docid": "3643235", "title": "", "text": "production of these witnesses on the day of the hearing, while the names of the witnesses were known to the petitioner well in advance, petitioner did not demonstrate due diligence. Where a movant does not exercise due diligence in apprising the court of the need for witnesses, a motion for continuance may be denied. Bandy v. United States, 8 Cir., 1961, 296 F.2d 882, 892, cert. denied, 1962, 369 U. S. 831, 82 S.Ct. 849, 7 L.Ed.2d 796; United States v. Harris, 10 Cir., 1971, 441 F.2d 1333, 1336. No abuse of discretion or error of constitutional proportions has been demonstrated. As additional support for his first point, petitioner claims that it was error for the state judge who presided at his habeas corpus hearing, and who also accepted petitioner’s guilty plea, to insert his own observation of petitioner’s competency to stand trial into the record of the proceedings. However, there was other evidence before the court which would sustain a finding of competency. We find no error. As this court stated in a case cited and relied upon by the petitioner, Tyler v. Swenson, 8 Cir., 1970, 427 F.2d 412, at 417; “ * * * a trial judge is not to be disqualified simply because he is familiar with the proceedings and supplements the record with observations. Nor do a trial judge’s supplemental statements into the record make him a material witness, unless he offers disputed and material testimony which is challenged by the petitioner. In the instant case it is particularly significant that the trial judge’s recollection was the only testimony which refuted petitioner’s claim, a claim which chal-leged the propriety of the judge’s prior conduct.” (Emphasis in the original.) An examination of the complete record convinces us that petitioner received a full and fair state court hearing on his motion to vacate under the provisions of Rule 27.26, supra, and thus under the principles of Townsend v. Sain, 1963, 372 U.S. 293, 83 S.Ct. 745, 9 L. Ed.2d 770, the District Court was not compelled to hold a de novo evidentiary hearing. Petitioner also contends that" }, { "docid": "8158774", "title": "", "text": "is determinable only after a factual hearing has been held, both at the trial stage, Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and, if necessary, at the collateral review level as well, Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1964). The necessity for a hearing in such ■cases is obvious: the question of coercion is dependent on a matrix of circumstantial evidence much of which can be assessed only by reference to the credibility of the witnesses. In the case of tacit admissions, however, the facts pertinent to the constitutional question are always the same: the use of accusatory statements by third parties, made in the presence of the defendant and not denied by him, as admissions. Thus, there is no need for a factual hearing. . There can be no doubt tlmt a “tacit admission” violates the Fifth Amendment. McCarthy v. United States, 25 F.2d 298 (C.C.A.6, 1928) ; Ivey v. United States, 344 F.2d 770 (C.A.5, 1905). But these cases were before Malloy. . Detective Jones’ testimony on this point is equivocal. See N.T. 124 et seq. . It is significant that the record is necessarily barren of demonstrative evidence which might permit a reviewing court to determine whether relator’s actions had any probative value. All that appears where the police try to simulate relator’s responses is “(indicating)” (N.T. 112-113). . The recently decided case of Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1907) focuses the problem more clearly, but apparently would not change the result in this case. See the concurring opinion of Mr. Justice Eagen, in which he is joined by a majority of the Court. . The trial judge volunteered that a verdict of not guilty “would be a miscarriage of justice, so far as I am concerned” (N.T. 161) and proceeded to demonstrate “intelligently and impartially and logically why under the law, I said what I did say.” (N.T. 162). Any verdict other than first degree murder would have been “totally illogical and not at all in accord with the admitted" }, { "docid": "12877150", "title": "", "text": "failure.” Walker v. Solem, 687 F.2d 1235, 1236 (8th Cir.1982) (citations omitted). The failure of trial counsel to request a competency hearing where there was evidence raising a substantial doubt about a petitioner’s competence to stand trial may constitute ineffective assistance of counsel. See generally Crenshaw v. Wolff, 504 F.2d 377, 380 (8th Cir.1974), cert. denied, 420 U.S. 966, 95 S.Ct. 1361, 43 L.Ed.2d 445 (1975). It is firmly established that a federal district court must grant an evidentiary hearing in a section 2254 action if the petitioner’s allegations, if proven, would establish his right to release and “if relevant facts are in dispute and a fair evidentiary hearing was not granted in state court.” Parton v. Wyrick, 614 F.2d 154, 158 (8th Cir.), cert. denied, 449 U.S. 846, 101 S.Ct. 131, 66 L.Ed.2d 56 (1980). See Townsend v. Sain, 372 U.S. 293, 312-13, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963); Jensen v. Satran, 651 F.2d 605, 608 (8th Cir.1981); Hampton v. Wyrick, 606 F.2d 834, 836 (8th Cir.1979), cert. denied, 444 U.S. 1022,100 S.Ct. 681, 62 L.Ed.2d 654 (1980). This rule generally applies unless the dispute can be resolved on the basis of the record. Jensen v. Satran, supra, 651 F.2d at 608; Lindner v. Wyrick, 644 F.2d 724, 729 (8th Cir.), cert. denied, 454 U.S. 872, 102 S.Ct. 345, 70 L.Ed.2d 178 (1981). In the instant case, the district court denied Speedy’s habeas petition without a hearing despite the facts that the petitioner was denied an evidentiary hearing on his Missouri Rule 27.26 motion, the Missouri Court of Appeals did not review the complete record in both the initial appeal and the appeal from the denial of postconviction relief, and petitioner had alleged that the postconviction records were incomplete and inadequate because of the absence of testimony of trial counsel, the petitioner, and other available witnesses. Under these circumstances we cannot conclude that petitioner had a full and fair hearing in state court. Moreover, petitioner raised at least one factual dispute relating to his competence at the time of trial which was not addressed by the magistrate" }, { "docid": "7067692", "title": "", "text": "States Courts, however, are not without potent weapons to discourage these impositions. Their awesome power to punish for contempt or perjury, if courageously employed, will provide needed deterrents. . Townsend’s conviction has been reviewed as follows: conviction affirmed, People v. Townsend, 11 Ill.2d 30, 141 N.E.2d 729, 69 A.L.R.2d 371 (1956), cert. den., Townsend v. People of State of Illinois, 355 U.S. 850, 78 S.Ct. 76, 2 L.Ed.2d 60 (1957) ; post-conviction relief denied in Illinois state trial and Supreme Courts, cert, den., Townsend v. People of State of Illinois, 358 U.S. 887, 79 S.Ct. 128, 3 L. Ed.2d 115 (1958) ; post-conviction relief in federal District Court denied, appeal dismissed, United States ex rel. Townsend v. Sain, 265 F.2d 660 (CA 7, 1958), rev’d. and remanded, Townsend v. Sain, 359 U.S. 64, 79 S.Ct. 655, 3 L.Ed.2d 634 (1959) ; petition dismissed in District Court, aff’d. United States ex rel. Townsend v. Sain, 276 F.2d 324 (CA 7, 1960), cert. granted, Townsend v. Sain, 365 U.S. 866, 81 S.Ct. 907, 5 L.Ed.2d 859 (1961), rev’d. and remanded, Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 945, 9 L.Ed.2d 770 (1963) ; decision of District Court ordering new trial rev’d., United States ex rel. Townsend v. Ogilvie, 334 F.2d 837 (CA 7, 1964), cert. den. Townsend v. Ogilvie, 379 U.S. 984, 85 S.Ct. 683, 13 L.Ed.2d 574 (1965) ; motion to allow amendment of petition denied in District Court, aff’d., United States ex rel. Townsend v. Ogilvie, 360 F.2d 925 (CA 7, 1966), cert. den., Townsend v. Ogilvie, 385 U.S. 938, 87 S.Ct. 304, 17 L.Ed.2d 218 (1966)." }, { "docid": "11991466", "title": "", "text": "it asked him to describe the crimes. Pennington admitted his guilt and described the crimes. Pennington exhausted his state remedies. He did not receive a hearing on the voluntariness of his plea after the plea was entered. The issue is whether the district court could have decided Pennington’s plea was involuntary without an evidentiary hearing. II. An evidentiary hearing is not required for every habeas corpus petition, but “a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts.” Townsend v. Sain, 372 U.S. 293, 312-13, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963). This does not mean, however, that the hearing must be in the form of a collateral proceeding. The Supreme Court has suggested that great weight is to be given to statements made in connection with a guilty plea: “[I]n collaterally attacking a plea of guilty a prisoner ‘may not ordinarily repudiate’ statements made to the sentencing judge when the plea was entered ... . ” Blackledge v. Allison, 431 U.S. 63, 73, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977), quoting Fontaine v. United States, 411 U.S. 213, 215, 93 S.Ct. 1461, 1462, 36 L.Ed.2d 169 (1973). Also, “[sjolemn declarations in open court carry a strong presumption of verity.” 431 U.S. at 74, 97 S.Ct. at 1629. Equally clear is the proposition: [F]ederal courts cannot fairly adopt a per se rule excluding all possibility that a defendant’s representations at the time his guilty plea was accepted were so much the product of such factors as misunderstanding, duress, or misrepresentation by others as to make the guilty plea a constitutionally inadequate basis for imprisonment. Id. at 75, 97 S.Ct. at 1629-1630. Thus, “the barrier of the plea or sentencing proceeding record, although imposing, is not invariably insurmountable.” Id. at 74, 97 S.Ct. at 1629. The facts of a particular case determine whether an evidentiary hearing is necessary. Richardson v. United States, 577 F.2d 447, 450 (8th Cir. 1978), cert. denied, 442 U.S. 910, 99 S.Ct. 2824, 61 L.Ed.2d 276 (1979). The Supreme Court in Allison offered" }, { "docid": "14305685", "title": "", "text": "in submitting evidence to the jury, it did not deny petitioners fair treatment or any fundamental constitutional right. Violation of a state statute does not, by itself, constitute deprivation of any right granted by the United States Constitution. Snowden v. Hughes, 321 U.S. 1, 11, 64 S.Ct. 397, 88 L.Ed. 497, 504 (1944); Beck v. Washington, 369 U.S. 541, 554-555, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962) ; Townsend v. Sain, 372 U.S. 293, 311-312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). 4. Evidentiary hearing. We are mindful of the requirements of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), but upon consideration of the whole record before the District Judge, we do not think there was need for an evidentiary hearing. Petitioners presented only one claim wherein it was necessary for the District Judge to resolve a factual dispute — the claim of involuntary pleas of guilty. From the record before him he could find that the petitioners had received a full and fair hearing by the trial court at the time of entering their pleas. The return was not traversed and its contents were accepted as true. 28 U.S.C. § 2248. If the pleas be seen as waivers of the allegedly coerced confessions, we think the requirements of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) have also been met: “If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, * * * then it is open to the federal court on habeas to deny him all relief * * * — though of course only after the federal court has satisfied itself, by holding a hearing or by some other means, of the facts bearing upon the applicant’s default.” (Emphasis supplied.) 372 U.S. at 439, 83 S.Ct. at 849. Judgment affirmed." }, { "docid": "18865443", "title": "", "text": "MEMORANDUM AND ORDER ALLEN SHARP, District Judge. This Court now considers the petitioner’s motion filed pursuant to 28 U.S.C. § 2254 requesting a writ of habeas corpus to issue. Petitioner, Edward Dennis Jacks, Jr., is a state prisoner who is presently incarcerated at the Indiana State Prison for his conviction for First Degree Murder. Petitioner was found guilty after a jury trial in November, 1976, and he received a sentence of life imprisonment. Petitioner took a direct appeal to the Supreme Court of Indiana raising several matters, including essentially the same issues presented in this petition. The Supreme Court of Indiana decided all issues adversely to petitioner and entered its findings and determination in its opinion cited in Jacks v. State, Ind., 394 N.E.2d 166 (1979). This Court has made a careful review of the state court record in this criminal case as mandated by Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). After careful consideration, and for the reasons stated below, this Court finds no merit in petitioner’s contentions and therefore denies his application for a writ of habeas corpus. The petitioner in this cause has set forth five grounds for relief. In addressing the alleged grounds for habeas corpus relief, it should be observed that the record of the state court proceedings contains sufficient facts upon which the Indiana courts could properly resolve the matters under consideration. Indeed, the state record demonstrates that the petitioner was given a full, fair, and adequate opportunity to bring out all pertinent information and evidence at the trial level. Therefore, any relevant factual determinations of the Supreme Court of Indiana with respect to the present issues are entitled to deference by the Court and should be accepted in this proceeding. See 28 U.S.C. § 2254(d); Swain v. Pressley, 430 U.S. 372, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977); United States ex rel. Clark v. Fike, 538 F.2d 750 (7th Cir. 1976); Tanner v. Vincent, 541 F.2d 932 (2d Cir. 1976), cert. den., 429 U.S. 1065, 97 S.Ct. 794, 50 L.Ed.2d 782; United States ex rel. McNair v." }, { "docid": "10639954", "title": "", "text": "to rely solely upon the evidence contained in that record * * By reason of later admissions of the petitioner, this issue loses any significance. . It would not have been of moment whether witnesses were called by the State or not, since the petitioner entered what was in effect a guilty plea. United States ex rel. Smith v. Russell (C.C.A. Pa.1966) 359 F.2d 795, 796, cert. denied 385 U.S. 876, 87 S.Ct. 154, 17 L.Ed.2d 103. In such circumstances, the defendant “cannot later be heard to contend that there was no evidence offered.” Bartholomew v. United States (C.C.A. Minn.1961) 286 F.2d 779, 781. Actually, his complaint on this score seems to have been that the person he described as the State’s “No. 1 witness” did not appear. This “No. 1 witness”, it appears from the petitioner’s testimony, was the complainant’s mother and she became the “No. 1 witness”, not because she knew more about the alleged assault than anyone else but because she was listed first on the group of witnesses endorsed on the back of the indictment. Obviously, the most important witness for the prosecution was the young lady, who, the indictment charged, was the victim of the attempted assault; and that was the witness who, according to the petitioner, did testify. . The record includes this colloquy between the petitioner and the Court: “THE COURT: They could have given you 40 years. “THE PETITIONER: Yes, sir, I know.” . See, Shelton v. State of S. C. (1962) 239 S.C. 535, 538, 123 S.E.2d 867, 869: “Voluntary intoxication at the time of the commission of a crime will not invalidate a subsequent plea of guilty.” To the same effect, Kelly v. Manning (1960) 237 S.C. 364, 368, 117 S.E.2d 362, cert. den. 366 U.S. 951, 81 S.Ct. 1907, 6 L.Ed.2d 1244; State v. Blassingame (1952) 221 S.C. 169, 171, 69 S.E.2d 601; Driver v. Hinnant (C.C.A.N.C.1966) 356 F.2d 761, 764. Of course, where specific intent is a necessary element, drunkenness “may reduce the degree of the crime or negative a specific intent” but that is an issue for" }, { "docid": "3643236", "title": "", "text": "cited and relied upon by the petitioner, Tyler v. Swenson, 8 Cir., 1970, 427 F.2d 412, at 417; “ * * * a trial judge is not to be disqualified simply because he is familiar with the proceedings and supplements the record with observations. Nor do a trial judge’s supplemental statements into the record make him a material witness, unless he offers disputed and material testimony which is challenged by the petitioner. In the instant case it is particularly significant that the trial judge’s recollection was the only testimony which refuted petitioner’s claim, a claim which chal-leged the propriety of the judge’s prior conduct.” (Emphasis in the original.) An examination of the complete record convinces us that petitioner received a full and fair state court hearing on his motion to vacate under the provisions of Rule 27.26, supra, and thus under the principles of Townsend v. Sain, 1963, 372 U.S. 293, 83 S.Ct. 745, 9 L. Ed.2d 770, the District Court was not compelled to hold a de novo evidentiary hearing. Petitioner also contends that his guilty plea was involuntary. Reference is made to the carefully considered opinion of the Supreme Court of Missouri, supra, and the very thorough opinion of the United States District Court, supra, each court having dealt most adequately with petitioner’s contention. It should be noted that there was evidence to support the finding of the state court that petitioner’s plea was made voluntarily. The allegations of the petitioner in his habeas corpus petition do not present the “convincing evidence” necessary to justify a federal court in reviewing a state court’s determination of disputed facts. Tyler v. Swenson, supra, 8 Cir., 1970, 427 F.2d 412, 414-415; In re Parker, 8 Cir., 1970, 423 F.2d 1021, 1027, cert. denied, 398 U.S. 966, 90 S.Ct. 2182, 26 L.Ed.2d 551. Petitioner finally argues that he was denied a pre-trial hearing on the issue of his competency to stand trial and alleges that the lack of such a hearing deprived him of his constitutional rights as outlined in Pate v. Robinson, 1966, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d" }, { "docid": "21950157", "title": "", "text": "Aguilar question is thought necessary by the Court to a full and proper consideration of the consent-search issue which is joined by the parties, as well as the confrontation issue to which this opinion will later advert. The United States Supreme Court has recently pronounced upon the consent-search issue in the case of Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (June, 1968). Bumper, unlike instant case, came up by writ of certiorari for direct review rather than, as here, collaterally by writ of habeas corpus. Title 28, U.S.C.A., Section 2241 et seq. The significance of this is, of course, that in Bumper the proceedings were criminal in nature and thus the burden of proof was at all material times upon the prosecution. It requires no citation of authorities to state that an application for writ of habeas corpus is a civil proceeding and the general burden of proof is on the applicant. This Court reads the rule of decision in Bumper to be as stated in that opinion at 391 U.S. 548-549, 88 S.Ct. 1792: “When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.” This factual question was effectively litigated in the state trial and appeal of instant case. 390 S.W.2d at 762. S/F, p. 691. There is no complaint here that the trial court in instant case erred, jurisdictionally or otherwise, in its admission of testimony or charge to the jury on the issue of a consent-search. Petitioner did not testify at the trial. In this proceeding, through able retained counsel, Petitioner has declined to offer testimony on this or any other issue at the fullest evidentiary opportunity available in this Court. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770. Petitioner, through able retained counsel, has entirely elected to rely upon the record. In Bumper the party allegedly giving the" }, { "docid": "22176221", "title": "", "text": "People v. Elksnis, 8 A.D. 2d 834, 190 N.Y.S.2d 154 (2d Dep’t 1959). Leave to appeal to the Court of Appeals was denied and certiorari was denied, 362 U.S. 925, 80 S.Ct. 679, 4 L.Ed.2d 743 (1960). However, the grounds urged upon appeal were that the plea of guilty was not knowingly made and had been entered upon a mistake of fact in that both petitioner and his counsel were under the impression that the prior conviction was a misdemeanor, and that the sentence was excessive. He also sought relief by way of a state writ of habeas corpus which was dismissed, Elksnis v. Warden, N.Y.L.J., Vol. 150, No. 66, p. 15, col. 5, Oct. 2, 1963, aff’d sub nom. People ex rel. Elksnis v. Allen, 23 A.D.2d 723, 258 N.Y.S.2d 351 (2d Dep’t), motion for leave to appeal denied, 15 N.Y.2d 488, 260 N.Y.S.2d 1027, 208 N.E.2d 790 (1965). The claim there was that the second degree murder indictment was void in that the evidence submitted to the grand jury only supported a charge of manslaughter in the first degree. Petitioner also attacked without success in the state and federal courts the previous conviction upon which he was sentenced as a multiple offender. United States ex rel. Elksnis v. Fay, 219 F.Supp. 606 (S.D. N.Y.1963). . See N.Y.Code Crim.Proc. § 337. . See Hogan v. Court of General Sessions, 296 N.Y. 1, 7-9, 68 N.E.2d 849 (1946) ; Lyons v. Goldstein, 290 N.Y. 19, 23, 47 N.E.2d 425, 146 A.L.R. 1422 (1943). . Cf. Townsend v. Sain, 372 U.S. 293, 316, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). . . 62 Stat. 1009 (1948). . Had a sentence of more than one year been imposed, petitioner would then have been subject to deportation, 8 U.S.C. § 1251(a) (4). . See 8 U.S.C. § 1251(a) (4). . See United States ex rel. McGrath v. La Vallee, 319 F.2d 308 (2d Cir. 1963), where the Court of Appeals held that a petitioner was entitled to a hearing in order that he might prove that his plea was induced by a judicial" }, { "docid": "10639952", "title": "", "text": "on Section 17-553.4, enacted in 1962 and held unconstitutional in State v. Harper (1968) 251 S.C. 379, 383-384, 162 S.E.2d 712. Such a consent verdict in a rape case was submitted to the jury in State v. Vaughn (1913) 95 S.C. 455, 79 S.E. 312, affirmed 238 U.S. 612, 35 S.Ct. 940, 59 L.Ed. 1489, it being left to the jury to determine whether defendant, under such plea, was entitled to mercy, thereby escaping the death penalty. In State v. Worthy (1962) 239 S.C. 449, 464-465, 123 S.E.2d 835, 843, the defendant, professing to follow the defendant’s action in the Vaughn Case, offered to consent to a jury verdict of guilty with recommendation to mercy. The Court remarked that under such a consent verdict, there “would have been no question for the jury to determine. * * * all that could have been done was for the Circuit Judge to sentence the appellant (defendant) to a term not exceeding forty years nor less than five years * * . In his testimony in this Court, the petitioner testified he had been given only one evidentiary hearing and had testified but once in the State Court proceedings. The official records, admitted in evidence without objection, show that this testimony is erroneous. . The rule seems to be that, absent any charge of fraud, the journal entry records of the proceedings in the State Court at the time of the impaneling of the jury and the consent verdict entered by the defendant import verity and are not open to challenge in a collateral proceeding such as this by parol testimony. Tibbett v. Hand (C.C.A.Kan.1961) 294 F.2d 68, 72; Thomas v. Hunter (C.C.A. Kan.1946) 153 F.2d 834, 838; State v. Mayfield (1959) 235 S.C. 11, 23, 109 S.E.2d 716, cert. den. 363 U.S. 846, 80 S.Ct. 1616, 4 L.Ed.2d 1728; cf., however, Haacks v. Wainwright (C.C.A.Fla.1968) 387 F.2d 176, 178. See, also, Townsend v. Sain (1963) 372 U.S. 293, 322, 83 S.Ct. 745, 762, 9 L.Ed. 2d 770: “ * * * the state-court record is competent evidence, and either party may choose" } ]

[ { "docid": "220090", "title": "", "text": "determination that Joiner was entitled to a profit of $.20 per square foot on the paneling, and that the only fault was in the district court’s allowing them to apply this measure to the 218,336 square feet manufactured prior to repudiation. In order to save the plaintiff the expense and risk of a new trial, we will, therefore, withhold entry of judgment for a period of fifteen (15) days, within which time the plaintiff may, if it so elects, file in the office of the Clerk of the district court a remittitur of the damages in excess of $34,-261.60 ($.20 per square foot times 171,308 square feet), and file a certified copy thereof in the office of the Clerk of this court. If such a remittitur is filed, the judgment of the district court, less the amount remitted, will be affirmed; otherwise, the judgment will be reversed and a new trial ordered. See Smyth Sales v. Petroleum Heat & Power Co., 141 F.2d 41, 45 (3d Cir. 1944); 6A J.Moore, Federal Practice, ¶ 59.05 [3] at 59-64 to 59-67. Costs shall be taxed against plaintiff, which is appellee and cross-appellant. EXHIBIT A George T. Daggett, Esq. 46 Main Street Sparta, New Jersey 07871 (201)729-2136 Attorney for Plaintiff Superior Court of New Jersey Law Division: Bergen County Docket No.: L-21803-71 Joiner Systems, Inc. A New Jersey Corporation Plaintiff v. AVM Corporation, Inc. A Delaware Corporation Civil Action Complaint and Demand for Jury Trial # AVM of Maryland A Maryland Corporation Defendant Plaintiff, Joiner Systems, Inc., a New Jersey Corporation, having its principal offices in the Borough of Rutherford, County of Bergen, State of New Jersey complaining of the defendants says: First Count 1. At the time or times herein stated, and prior thereto, plaintiff was a corporation of the State of New Jersey engaged in the business of selling certain fireproof and or fire retardant materials for use in accordance with Coast Guard specifications for such materials to be used in the construction of sea going vessels. 2. Defendant was and still is a corporation organized and existing under the laws" } ]

[ { "docid": "17379723", "title": "", "text": "above — relatively unlikely to lead to a second trial, it would seem to be the most “practicable” standard. In sum, we are not persuaded by the argument that the “intermediate” standard favored by Professor Moore should have been employed in computing the remittitur in this case. Indeed, for the reasons stated above, we hold that district courts should use the least intrusive standard for calculating a remittitur. According to that standard, a district court should remit the jury’s award only to the maximum amount that would be upheld by the district court as not excessive. B. We find nothing in the record to substantiate the claim that Judge Weinstein abused his discretion by remitting the amount that he did. See generally Reinertsen, 519 F.2d at 532-33 (court of appeals should not disturb remittitur unless “the quantum of damages found by the jury was clearly within ... ‘the maximum limit of a reasonable range,’ ” [emphasis in original of case cited] and holding that trial judge did not abuse discretion in concluding that \"a $75,000 verdict was clearly beyond the maximum limit of a reasonable range and that $45,000 would constitute such a maximum”); see also Grunenthal v. Long Island R.R. Co., 393 U.S. 156, 160, 89 S.Ct. 331, 334, 21 L.Ed.2d 309 (1968) (“trial judge did not abuse his discretion in finding ‘nothing untoward, inordinate, unreasonable or outrageous — nothing indicative of a runaway jury or one that lost its head’ ”); Saleeby v. Kingsway Tankers, Inc., 531 F.Supp. 879, 888 (S.D.N.Y.1981) (substantially same) (Jones Act case); Filkins v. McAllister Bros., Inc., 695 F.Supp. 845, 851 (E.D.Va.1988) (question of excessiveness of verdict is left largely to discretion of trial court) (Jones Act case). IV. Plaintiff makes a similar argument in his cross-appeal. He contends that the district court abused its discretion by ordering such a “drastic remittitur of the lost earnings award” and asks this court to reinstate the jury’s special damage award. But plaintiff’s cross-appeal need not detain us. The rule is now clear that “a plaintiff in federal court ... may not appeal from a remittitur order" }, { "docid": "11895544", "title": "", "text": "discretion in conditioning the denial of the motion for new trial on the plaintiff’s consent to remit $7,500 of the $15,000 award. Judge Larson found that “[t]he evidence on damages is so thin, so aleatory and scanty, especially in view of the plaintiff’s admitted refusal to mitigate during the entire course of the first lawsuit, that the Court is reluctantly constrained to ask the plaintiff to remit the damages or proceed with a new trial.” The plaintiff’s argument is that the trial court, in so finding, merely substituted its judgment for that of the jury. A trial court’s discretion to order a new trial unless the plaintiff agrees to a remittitur of a stated amount, however, has long been sanctioned, see Dimick v. Schiedt, 293 U.S. 474, 482-85, 55 S.Ct. 296, 299-300, 79 L.Ed. 603 (1935) and 11 Wright and Miller, Federal Practice and Procedure, Section 2815 at 100-103 (1973), and, as the plaintiff in this case consented to the remittitur, she may not appeal the propriety of that order. Donovan v. Penn Shipping Co., 429 U.S. 648, 97 S.Ct. 835, 51 L.Ed.2d 112 (1977). Accordingly, the judgment of the district court is affirmed in all respects. . 42 U.S.C. § 1983; 28 U.S.C. § 1343(3). . The Honorable Earl R. Larson, Senior District Judge, United States District Court for the District of Minnesota. . Pierringer v. Hoger, 21 Wis.2d 182, 124 N.W.2d 106 (1963). . In its entirety, Paragraph II of the release provides: The Undersigned hereby credits and satisfies ' that portion of the total amount of her damages which were [sic] caused by the alleged deprivation of civil rights and wrongful discharge from employment, if any, of Defendant John Rogers, and County of Meeker, and others as may hereinafter be determined in the trial of the aforesaid law suit which may hereafter be allocated in the trial of the aforesaid law suit or otherwise to causual [sic] acts or admissions [sic] on the part of the Defendant County of Meeker. . See, e. g., MacKethan v. Burrus, Cootes and Burrus, 545 F.2d 1388 (4th Cir. 1976); Snowden" }, { "docid": "11895543", "title": "", "text": "no “actual malice” was shown on the part of the sheriff, compels a finding of good faith in the present action. Although a number of differences are immediately discernible between the element of actual malice in a defamation suit and the defense of good faith in a civil rights action, we find it unnecessary to decide that question for two reasons. First, this argument again raises res judicata or estoppel principles, which, as already discussed, were not raised at trial. Second, whereas the question of actual malice addressed in the defamation suit extended only to certain statements made by the sheriff, the issue of good faith in the present action involved, as stated in the jury instructions, “the lawfulness of plaintiff’s employment termination, the circumstances surrounding plaintiff’s termination of employment and the manner in which plaintiff’s termination was carried out.” Thus, the question of good faith in the present action was much broader than that of actual malice before the state court. V. The plaintiff cross-appeals on the ground that the district court abused its discretion in conditioning the denial of the motion for new trial on the plaintiff’s consent to remit $7,500 of the $15,000 award. Judge Larson found that “[t]he evidence on damages is so thin, so aleatory and scanty, especially in view of the plaintiff’s admitted refusal to mitigate during the entire course of the first lawsuit, that the Court is reluctantly constrained to ask the plaintiff to remit the damages or proceed with a new trial.” The plaintiff’s argument is that the trial court, in so finding, merely substituted its judgment for that of the jury. A trial court’s discretion to order a new trial unless the plaintiff agrees to a remittitur of a stated amount, however, has long been sanctioned, see Dimick v. Schiedt, 293 U.S. 474, 482-85, 55 S.Ct. 296, 299-300, 79 L.Ed. 603 (1935) and 11 Wright and Miller, Federal Practice and Procedure, Section 2815 at 100-103 (1973), and, as the plaintiff in this case consented to the remittitur, she may not appeal the propriety of that order. Donovan v. Penn Shipping Co.," }, { "docid": "20396978", "title": "", "text": "the issue declined to apply Gore in this context and instead applied the Williams test. See Zomba Enters., Inc. v. Panorama Records, Inc., 491 F.3d 574, 587 (6th Cir.2007). Cf. Parker v. Time Warner Entm’t Co., 331 F.3d 13, 22 (2d Cir.2003) (suggesting, in dicta, that Gore might govern due process review of statutory damage awards). Had the district court ordered remittitur and not reached the constitutional question, it would not have needed to consider these issues or determine the relevant standard for assessing the constitutionality of a Copyright Act statutory damage award. A decision based on remittitur, under which a new trial must be granted if plaintiffs do not accept the remitted award, also would have avoided another complicated constitutional question, which we describe briefly. That issue arises under the Seventh Amendment, and is whether a statutory damage award under the Copyright Act may be reduced without offering the plaintiffs a new trial. Neither this court nor the Supreme Court has directly addressed the issue, but the Court’s Feltner decision must be taken into account. The usual rule for a general damage award is that a court may not reduce a jury’s verdict and effectively impose a remittitur without affording a plaintiff “the option of a new trial when it enter[s] judgment for the reduced damages.” Hetzel v. Prince William Cnty., 523 U.S. 208, 211, 118 S.Ct. 1210, 140 L.Ed.2d 336 (1998); see also Dimick v. Schiedt, 293 U.S. 474, 486-87, 55 S.Ct. 296, 79 L.Ed. 603 (1935) (affirming remittitur power of courts but noting that where a verdict is set aside, the parties retain their right to have a jury determine the measure of damages); Kennon v. Gilmer, 131 U.S. 22, 29, 9 S.Ct. 696, 33 L.Ed. 110 (1889) (finding that under the Seventh Amendment a court has no authority to reexamine facts determined by a jury, or to enter “according to its own estimate of the amount of damages which the plaintiff ought to have recovered ... an absolute judgment for any other sum than that assessed by the jury”). Citing Hetzel, we have held a trial" }, { "docid": "20396994", "title": "", "text": "the district court erred in reducing the award. . These reasons are based on assumptions, not facts. Sony could not have decided its course of action if remittitur were allowed unless it knew the amount. Further, if Sony chose a new trial on damages, no one knows what sum a new jury would award, or whether that award would be challenged as excessive. . The district court also attempted to justify its decision to bypass remittitur by making certain rulings on the merits of the constitutional issue. For example, the district court reasoned that the \"differences between the [Gore and Williams ] approaches are, in practice, minimalf,]” a disputed issue. Sony BMG Music Entm't v. Tenenbaum, 721 F.Supp.2d 85, 101 (D.Mass.2010). . The Seventh Amendment provides that, \"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.” U.S. Const, amend. VII. . Additionally, some courts have suggested that even under Gore, a court must give plaintiff the option of a new trial when it reduces a punitive damages award on due process grounds. See S. Union Co. v. Irvin, 563 F.3d 788, 790 (9th Cir.2009); Lee v. Edwards, 101 F.3d 805, 813 (2d Cir.1996). . Sony rather weakly asserts remittitur is not available where, as here, an award falls within a prescribed statutory range. We do not take as given the questionable proposition that in enacting the Copyright Act, Congress intended to eliminate the common law power of the courts to consider remittitur. Common law remittitur has roots deep in English and American jurisprudence. See Honda Motor Co. v. Oberg, 512 U.S. 415, 424-26, 114 S.Ct. 2331, 129 L.Ed.2d 336 (1994); Dimick v. Schiedt, 293 U.S. 474, 482-83, 55 S.Ct. 296, 79 L.Ed. 603 (1935) (citing Blunt v. Little, Fed.Cas. No. 1,578, 3 Mason 102 (1822) (Story, J.)). We see no reason to think Congress meant to override this aspect" }, { "docid": "940935", "title": "", "text": "PER CURIAM: A judgment of $350,000.00 was entered on a jury verdict against appellant Seaboard Coast Line Railroad Company in favor of appellee Paul Greco, one of its employees who brought the action under the Federal Employers Liability Act and also the Safety Appliance Act. Seaboard asserts error because the district court refused to instruct the jury that any award to Greco in the case would not be subject to federal income tax, and that the district court erred in denying the defendant’s motion for a new trial or a remittitur on the award. We find no error in the district court’s refusal to instruct the jury that any award to Greco in the case would not be subject to federal income tax. The refusal was proper and follows prior decisions of this court. See Cunningham v. Bay Drilling Co., 5 Cir. 1970, 421 F.2d 1398; Prudential Insurance Co. of America v. Wilkerson, 5 Cir. 1964, 327 F.2d 997. A review of the record on the damage issue supports the determination of the jury on this question, and the exercise of the district court’s discretion in declining to disturb it. Suffice it to say that Greco, 40 years of age, earning approximately $8,000.00 per year, lost his leg by amputation at a time when he had a life expectancy of 31 years. Added to this was past earnings loss, substantial past and future medical expenses, together with pain and suffering. We conclude that the action of the district court in refusing the new trial or to grant a remittitur on the ground that the verdict was excessive should not be disturbed. See Grunenthal v. Long Island R. Co., 393 U.S. 156, 89 S.Ct. 331, 21 L.Ed.2d 309. We find no errors as asserted to the district court’s other post-trial rulings and conclude that the trial in other respects was free from prejudicial error. Affirmed. . The Chief Judge, concurring in the decision and the opinion on the basis of Cunningham and Wilkerson, supra, thinks those cases should be reconsidered. Theirs is an unrealistic holding since all know today that taxes" }, { "docid": "17379724", "title": "", "text": "verdict was clearly beyond the maximum limit of a reasonable range and that $45,000 would constitute such a maximum”); see also Grunenthal v. Long Island R.R. Co., 393 U.S. 156, 160, 89 S.Ct. 331, 334, 21 L.Ed.2d 309 (1968) (“trial judge did not abuse his discretion in finding ‘nothing untoward, inordinate, unreasonable or outrageous — nothing indicative of a runaway jury or one that lost its head’ ”); Saleeby v. Kingsway Tankers, Inc., 531 F.Supp. 879, 888 (S.D.N.Y.1981) (substantially same) (Jones Act case); Filkins v. McAllister Bros., Inc., 695 F.Supp. 845, 851 (E.D.Va.1988) (question of excessiveness of verdict is left largely to discretion of trial court) (Jones Act case). IV. Plaintiff makes a similar argument in his cross-appeal. He contends that the district court abused its discretion by ordering such a “drastic remittitur of the lost earnings award” and asks this court to reinstate the jury’s special damage award. But plaintiff’s cross-appeal need not detain us. The rule is now clear that “a plaintiff in federal court ... may not appeal from a remittitur order he has accepted.” Donovan, 429 U.S. at 650, 97 S.Ct. at 837; see also Fiacco v. City of Rensselaer, 783 F.2d 319, 333 (2d Cir.1986) (“when a plaintiff has agreed to a remittitur order, he cannot challenge it either on an appeal ... or on a cross appeal____” (citations omitted)), cert. denied, 480 U.S. 922, 107 S.Ct. 1384, 94 L.Ed.2d 698 (1987). This court made an exception to that rule in a case in which we vacated the district court’s judgment that had conditioned a new trial on a remittitur. Akermanis v. Sea-Land Serv., Inc., 688 F.2d 898, 903-04 (2d Cir.1982), cert. denied, 461 U.S. 927, 103 S.Ct. 2087, 77 L.Ed.2d 298 (1983), cert. denied, 464 U.S. 1039, 104 S.Ct. 700, 79 L.Ed.2d 165 (1984). Under those circumstances, it is “conceptually difficult and practically unfair to think of the plaintiff as having waived a cross-appeal by consenting to a judgment that no longer exists.” Id. at 903. That exception is not applicable here. Plaintiff in this case opted for the remittitur and consented to the" }, { "docid": "12666821", "title": "", "text": "accounting for future damages, $550,000 for pain and suffering is not reasonable in these circumstances; it is “so grossly disproportionate to the injuries ... as to be unconscionable.” Laaperi v. Sears, Roebuck & Co., Inc., 787 F.2d 726, 735 (1st Cir.1986). The verdict is not “within the universe of possible awards which are supported by the evidence.” Clark v. Taylor, 710 F.2d 4, 13 (1st Cir.1983). We conclude that a new trial on damages is appropriate here. However, we condition this holding on plaintiffs declining to remit half of the total amount awarded by the jury. We think that $300,000 represents the highest reasonable total of damages for which there is adequate evidentia-ry support in this case. See Laaperi, 787 F.2d at 734. Conditioning a new trial on such a remittitur comports with the “maximum recovery rule” adopted by this and other circuit courts. See, e.g., Liberty Mutual Ins. Co. v. Continental Casualty Co., 771 F.2d 579, 588-89 (1st Cir.1985); Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033, 1046-47 (5th Cir.1970). Plaintiff has the privilege under the Seventh Amendment of choosing to take his chances on a new trial in the hope that a second jury might return a verdict for a higher amount. If, however, plaintiff opts to remit half of the general verdict, defendant would not in any way be prejudiced. Cf. Liberty Mutual, 771 F.2d at 588. The remaining total is a reasonable one which cannot be challenged; the remittitur “has the effect of merely lopping off an excrescence.” Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935). Accordingly, the district court shall reinstate the verdict of the jury on liability. The judgment notwithstanding the verdict is vacated. A new trial shall be ordered on damages only if plaintiff decides not to remit $300,000 (plus any interest accrued thereon) from the general verdict of $600,000. . Plaintiff brought this action on alternative theories of negligence and breach of warranty. The judge’s charge to the jury did not specify which causes of action the jury was being asked to rule on." }, { "docid": "744772", "title": "", "text": "district court held that Clara Ann Manning’s claim for loss of consortium was derivative from Jack Manning’s claim for personal injuries and that the same statute of limitations should apply to both claims. On April 4, 1972 the Tennessee General Assembly enacted an amendment to TCA § 28-304 to provide that no person shall be deprived of his right to maintain an action in a products liability case until one year from the date of his injury. The history of legislative amendments of TCA § 28-304 in response to Jackson v. General Motors Corp., supra, leads us to the conclusion that it would be against the public policy of Tennessee to hold that the right of action of Clara Ann Manning was barred by limitations because she did not file suit within one year after her husband’s employer purchased the equipment even though she filed within one year after the date of his injury. Bradley v. General Motors Corp., 463 F.2d 239 (6th Cir. 1972). The district court correctly held that the action of Clara Ann Manning was timely filed. The Remittitur Issue Although constitutional objections have been raised, it is now settled that a trial court which deems a jury’s award of damages excessive may order the plaintiff to remit a portion of the verdict or suffer a new trial. Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935). In diversity cases from the district courts in Tennessee this court has approved the Tennessee practice of permitting a plaintiff to accept remittitur under protest and then appeal the trial court's ruling. Mooney v. Henderson Portion Pack Co., Inc., 334 F.2d 7 (6th Cir. 1964). In the second appeal of the Mooney case this court dis cussed the underlying rationale of the practice of remittitur, holding that it is . . ancillary to ... [the] right of the trial judge to grant a new trial because of the excessiveness of the jury verdict.” Mooney v. Henderson Portion Pack Co., Inc., 339 F.2d 64, 66 (6th Cir. 1964). Since the action of a trial court in granting" }, { "docid": "9861671", "title": "", "text": "some discretion to determine when he would work on the ship’s pedestals and had exercised that discretion without using reasonable care. Judge Haight then determined that a factor of only four percent for contributory negligence of this sort was against the weight of the evidence and so substantially below jury determinations in similar Jones Act cases as to warrant a new trial. After referring to cases cited at 44A Modern Federal Practice Digest Seamen § 29(4)(H) (West 1968), he concluded that the lowest contributory negligence factor the evidence would support was 25 percent. He therefore ordered a new trial on liability issues, but with the condition that the defendant’s motion for new trial would be denied if the plaintiff would accept a “remittitur” of damages based on an increase of the contributory negligence factor from four to 25 percent. The plaintiff accepted, and judgment was entered in favor of the plaintiff for 75% of the jury’s determination of the total amount of damages suffered. I. We consider first Sea-Land’s appeal, which challenges the District Court’s authority to use the device of a remittitur to adjust the jury’s determination of the contributory negligence percentage. Remittitur is a limited exception to the sanctity of jury fact-finding. It allows trial judges to reduce damages, but only when an award is grossly excessive. As the Supreme Court has stated, this exception is justified because, “[wjhere the verdict is excessive, the practice of substituting a remission of the excess for a new trial is not without plausible support in the view that what remains is included in the verdict along with the unlawful excess — in that sense that it has been found by the jury — and that the remittitur has the effect of merely lopping off an excrescence,” Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935). But in Dimick, the Supreme Court made clear that remittitur was not an expansive doctrine: “Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any" }, { "docid": "15765408", "title": "", "text": "ended and he was fit to return to work, even though he could have started looking on March 5 or even during his vacation but when he in fact waited until June. We do not think that appellant should be held responsible for what under the damages awarded amount to compensation for a month’s “looking” time when to suit appellee’s own convenience he did not start looking for two and a half or three months after he was capable of working. Accordingly, we reverse the judgment of the district court and order a new trial on the issue of damages from lost earnings alone; but we will withhold entry of judgment for thirty days, within which time appellee may, if he chooses, file with the clerk of the district court a remittitur of all damages for lost earnings in excess of $17,-292 (plus interest from date of judgment). Appellee shall then file in the office of the clerk of this court a certified copy of the remittitur filed in the district court. If appellee files a remittitur, the judgment of the district court, less the amount remitted, will be affirmed; otherwise, as stated, the judgment will be reversed and a new trial on the issue of damages for lost earnings ordered. See Joiner Systems, Inc. v. AVM Corp., 517 F.2d 45, 49 (3d Cir. 1975); cf. Dimick v. Schiedt, 293 U.S. 474, 482-83, 484-85, 55 S.Ct. 296, 79 L.Ed. 603 (1935); Grunenthal v. Long Island Rail Road Co., 393 U.S. 156, 89 S.Ct. 331, 21 L.Ed.2d 309 (1968) (both cases recognize practice of remittitur of conditional new trial in federal courts). Judgment in accordance with opinion. . Judge Van Graafeiland would not reach the issue of negligence." }, { "docid": "19685940", "title": "", "text": "59(b) for a new trial with respect to issues of liability is DENIED; 4. Defendant City of Rome’s motion pursuant to Rule 59(b) for a new trial with respect to issues of liability in the state law claims is DENIED; 5. Defendants’ motion pursuant to Rule 60(b)(2), (3), & (6) to set aside the verdict and judgment entered therein and to grant a new trial is DENIED; 6. Plaintiffs motion to amend the pleadings pursuant to Rule 15(b) is GRANTED; 7. Defendant Early’s motion to set aside the verdict and judgment entered therein for punitive damages is DENIED; and 8. Defendants’ motion pursuant to Rule 59(b) for a new trial with respect to the issue of compensatory damages is GRANTED, subject to the following: a. In the event the plaintiffs attorney files with the Clerk an acceptance of a remit-titur in the sum of $137,500.00 on or before January 4, 1995, the Clerk shall file an amended judgment for compensatory damages against the defendants Early and City of Rome jointly and severally in the sum of $62,500.00 ($200,000.00 minus $137,500); and defendants’ motion for a new trial shall then be DENIED; and the remaining issues such as plaintiffs attorney’s fees shall be addressed; and b. In the event the plaintiffs attorney does not file an acceptance of the remittitur on or before January 4, 1995, the Clerk shall vacate the judgment of $200,000.00 for compensatory damages, and a new trial shall be scheduled on the issue of compensatory damages only. IT IS SO ORDERED. . Plaintiff in opposition requested an additur to the punitive damages, but because he did not file a formal motion, it will not be addressed. See Earl v. Bouchard Transp. Co., Inc., 917 F.2d 1320, 1331 (2d Cir.1990) (citing Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935) for the proposition that additur is impermissible in federal courts). . Actually, both Early and Sgt. Tharrett were vague even at trial as to the exact reason for plaintiff’s arrest. . The court refers to both state and federal claims, and false imprisonment and" }, { "docid": "10434352", "title": "", "text": "It is true enough that the counsel for the United States stood by doing nothing to prevent, if they did not add to, the resulting confusion, and that normally a judge may not thus be put in error. Maryland Cas. Co. v. Reid, 5 Cir., 76 F.2d 30. The departures here were so great though, the case went so far out of bounds, and the verdict was in amount so in excess of any of the substantial relevant evidence in the case, as to require the court, though proper objection was not timely made, Idem., to notice and correct the error. In addition, there was error in the matters objected to, receiving evidence of an offer for the property, and plaintiff’s testimony to the number of bulbs that had been reported to her. Under all the circumstances, including the excessive verdict, these errors cannot be regarded as harmless and, therefore, nor reversible, within the terms of Sec. 269 of the Judicial Code as amended. Unless, therefore, the appellee will consent to a conditional affirmance of the judgment, that is, affirmance conditioned upon remitting it down to $10,000, the amount the United States has paid into court, the judgment must be reversed and the cause remanded. We recognize that the practice of requiring remittitur in the appellate courts, while almost universal in the states, is not established in federal appellate courts. We see no reason, however, particularly in a condemnation case, why in the interest-of saving the time and expense attendant upon a new trial, the practice should not be resorted to. It is well settled by the state courts, on the authority, among others, of Arkansas Valley Land & Cattle Co. v. Mann, 130 U.S. 69, 9 S.Ct. 458, 32 L.Ed. 854, a case of remittitur by a federal trial judge, that the exercise of the power of remittitur does not invade the constitutional right of trial by jury. While Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603, 95 A.L.R. 1150, does hold that a trial court cannot raise a verdict by additur, that case, as" }, { "docid": "12666822", "title": "", "text": "privilege under the Seventh Amendment of choosing to take his chances on a new trial in the hope that a second jury might return a verdict for a higher amount. If, however, plaintiff opts to remit half of the general verdict, defendant would not in any way be prejudiced. Cf. Liberty Mutual, 771 F.2d at 588. The remaining total is a reasonable one which cannot be challenged; the remittitur “has the effect of merely lopping off an excrescence.” Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935). Accordingly, the district court shall reinstate the verdict of the jury on liability. The judgment notwithstanding the verdict is vacated. A new trial shall be ordered on damages only if plaintiff decides not to remit $300,000 (plus any interest accrued thereon) from the general verdict of $600,000. . Plaintiff brought this action on alternative theories of negligence and breach of warranty. The judge’s charge to the jury did not specify which causes of action the jury was being asked to rule on. According to the district court, plaintiff waived the negligence count. The defendant thought, on the other hand, that the negligence count was the only theory on which the jury had been charged. The plaintiff contends that it did not waive either count, and that the jury charge reflects both theories. All discussion of these matters seems to have taken place off the record. We agree with the district court that the jury was charged on a warranty theory, even though \"a small portion of the charge might be read as sounding in negligence.\" Slip op. at 1 n. 1. Because we conclude that the verdict should stand on the warranty cause of action, we need not reach the question of whether the jury verdict further supports a finding on negligence. The plaintiffs recovery would not be enhanced by the additional finding of negligence. . Appellee also contends that the Michelin tire was insufficient to establish an alternative design because there was no evidence that it was actually available at the time that the tire in" }, { "docid": "4489682", "title": "", "text": "Wagenmann v. Adams, 829 F.2d at 216). In calculating the amount of damages, the jury was instructed to consider lost earnings, as well as pain and suffering. With regard to lost earnings, the evidence indicated that Toucet was unable to work for more than three months after his injury. Although Toucet was pronounced “fit for duty” by his doctor and attempted to resume work as a seaman in December 1987, Toucet testified that he was unable to remain on the job for more than a few days because of his back injury. In terms of pain and suffering, Toucet testified that, up until the time of trial, he continued to suffer pain and discomfort attributable to his injury aboard the Overseas Alaska, even though the injury occurred four years earlier. Under these circumstances, we conclude that the jury’s $75,000 judgment cannot be fairly characterized as “ ‘grossly excessive,’ ” “ ‘inordinate’ ” or “ ‘shocking to the conscience’ ”. See McDonald v. Federal Lab., Inc., 724 F.2d at 246 (quoting Grunenthal v. Long Island R.R. Co., 393 U.S. 156, 159 n. 4, 89 S.Ct. 331, 333 n. 4, 21 L.Ed.2d 309 (1968)). Accordingly, we find no abuse of discretion in the trial court’s denial of Maritime’s motions for a new trial on damages or for remittitur. CONCLUSION The trial court’s orders directing judgment to enter according to the jury’s verdict and dismissing Maritime’s post trial motions are AFFIRMED. . Under Rule 10, the record on appeal properly includes “[t]he original papers and exhibits filed in the district court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the district court....\" Fed.R.App.P. 10(a). Rule 10’s scope reaches “'all papers presented to the district court and filed in the record and all papers filed by the district court itself.’ ” In re Arthur Andersen & Co., 621 F.2d 37, 39 (1st Cir.1980) (quoting 9 James W. Moore et al., Moore’s Federal Practice ¶ 210.04[1]). . Maritime’s failure to include the October 10, 1991 transcript in its appendix is particularly surprising since the" }, { "docid": "15765407", "title": "", "text": "until March 5). Appellee argues on appeal for lost wages due to injury until June 12, a date on which he saw a chiropractor. But this doctor, according to his deposition, did not advise appellee that he was fit to return to work— that subject does not appear to have been raised — so that this visit could not have been the impetus for appellee’s seeking work as of that date. Appellee testified that he did not begin to seek employment until “the early summer, the late spring area.” He applied for vacation time of presumably seventy-nine days, the same time that he worked, on February 20, a vacation period that would have expired on May 10. Under union rules he could not have gone back to sea before that date and still collected vacation pay. There was testimony that it usually takes two or three months to obtain a job at sea after one starts looking. The question then is whether the jury could properly award damages for earnings lost after his “vacation” had ended and he was fit to return to work, even though he could have started looking on March 5 or even during his vacation but when he in fact waited until June. We do not think that appellant should be held responsible for what under the damages awarded amount to compensation for a month’s “looking” time when to suit appellee’s own convenience he did not start looking for two and a half or three months after he was capable of working. Accordingly, we reverse the judgment of the district court and order a new trial on the issue of damages from lost earnings alone; but we will withhold entry of judgment for thirty days, within which time appellee may, if he chooses, file with the clerk of the district court a remittitur of all damages for lost earnings in excess of $17,-292 (plus interest from date of judgment). Appellee shall then file in the office of the clerk of this court a certified copy of the remittitur filed in the district court. If appellee files" }, { "docid": "10434353", "title": "", "text": "the judgment, that is, affirmance conditioned upon remitting it down to $10,000, the amount the United States has paid into court, the judgment must be reversed and the cause remanded. We recognize that the practice of requiring remittitur in the appellate courts, while almost universal in the states, is not established in federal appellate courts. We see no reason, however, particularly in a condemnation case, why in the interest-of saving the time and expense attendant upon a new trial, the practice should not be resorted to. It is well settled by the state courts, on the authority, among others, of Arkansas Valley Land & Cattle Co. v. Mann, 130 U.S. 69, 9 S.Ct. 458, 32 L.Ed. 854, a case of remittitur by a federal trial judge, that the exercise of the power of remittitur does not invade the constitutional right of trial by jury. While Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603, 95 A.L.R. 1150, does hold that a trial court cannot raise a verdict by additur, that case, as well as the uniform current of authorities in United States courts, recognizes that, except in those cases where it is made to appear that the verdict was the result of passion and prejudice, the trial judge may conditionally require a remittitur. This .is not a case of passion or prejudice on the part of the jury. It is a case merely of their being led through a confused record to a confused result. Taking the evidence as it came in, piecemeal, and, without guide and instruction,-left to reach their result by adding together the unrelated pieces of testimony, the jury was’ misled not by passion and prejudice (but by unassisted ignorance into finding the verdict that .it did. Here, by depositing $10,000, the United States has clearly recognized that, beyond that amount it does not regard the verdict as excessive. It, therefore, cannot reasonably complain of a remittitur put at that amount. The appellee cannot complain because the legal and relevant evidence will not support a larger recovery and because she is given an option" }, { "docid": "17379726", "title": "", "text": "reduced verdict, and the judgment has not been vacated on appeal. As a result, he may not now challenge the remittitur. The cross-appeal is, accordingly, dismissed. V. Finally, defendants argue that the district court miscalculated the remittitur by factoring back into the award an unspecified amount for maintenance and cure after having previously dismissed the plaintiffs maintenance and cure claim during the trial. We agree. It has been clear, at least since Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935), that while a remittitur is permissible, an additur is not. Crane v. Consolidated Rail Corp., 731 F.2d 1042, 1046 (2d Cir.), cert. denied, 469 U.S. 854, 105 S.Ct. 179, 83 L.Ed.2d 114 (1984); Akermanis, 688 F.2d at 902. In theory, just as courts permit remittiturs, they could also permit “additurs” — that is, courts could be permitted to require defendants to choose either a new trial or a court-increased verdict. Indeed, that is the practice in some state courts. See, e.g., Jehl v. Southern Pac. Co., 66 Cal.2d 821, 59 Cal.Rptr. 276, 427 P.2d 988 (1967) (Traynor, C.J.); O’Connor v. Papertsian, 309 N.Y. 465, 131 N.E.2d 883 (1955). Yet, federal courts treat the doctrines of remittitur and additur asymmetrically. In Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935), the Court concluded that additur could not be employed by federal courts because the procedure involved an unconstitutional reexamination of a jury verdict in violation of the Seventh Amendment. But the Court, in dictum, came to the opposite conclusion with regard to remittiturs: [I]f the question of remittitur were now before us for the first time, it would be decided otherwise. But ... the doctrine has been accepted as the law for more than a hundred years and uniformly applied in the federal courts during that time. And, as it finds some support in the practice of the English courts prior to the adoption of the Constitution, we may assume that in a case involving a remittitur, which this case does not, the doctrine would not be reconsidered or disturbed at this" }, { "docid": "12272927", "title": "", "text": "the seventh amendment right to a jury trial in civil cases. Dimick v. Schiedt, 293 U.S. 474, 486-88, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935); Hawkes v. Ayers, 537 F.2d 836, 837 (5th Cir.1976). While the district court erred in ordering the defendant to choose between accepting either the additur or a new trial, this court faces several procedural hurdles that block review of that decision. Because we find that the defendant has waived appellate review of the additur order, we leave untouched the district court’s judgment on this issue. The defendant’s action of accepting the additur “subject to all rights of appeal” availed the defendant nothing. In Donovan, the Court held that acceptance of a remittitur, even under protest, bars appeal of the propriety of the remittitur order. 429 U.S. at 649-50, 97 S.Ct. at 836-37. The rule reaffirmed in Donovan exists to prevent a party from bypassing a new trial and thereby directly appealing the otherwise non-final new trial order. Woodworth v. Chesbrough, 244 U.S. 79, 81-82, 37 S.Ct. 583, 584, 61 L.Ed. 1005 (1917). When the defendant objects to the remittitur, he receives a new trial on the damages issue. That is his only remedy. Of course, that order granting the new trial is not immediately reviewable since it is an interlocutory order. Id. at 82, 37 S.Ct. at 584. Since an additur order by a federal court is unconstitutional, there are not any cases applying Donovan to an additur order. The defendant disputes none of the analysis of Donovan. In the supplementary briefs filed at the request of this court at oral argument, however, the defendant argues that the Donovan rule does not apply to an additur order. In support of this proposition he cites Dimick. The defendant notes that the Dimick plaintiff moved for a new trial on the damages issue. The district court entered an order granting the new trial unless the defendant accepted an additur. The defendant then accepted the additur. On appeal, the Supreme Court then found that the additur order constituted a violation of the seventh amendment. The defendant is" }, { "docid": "744773", "title": "", "text": "Ann Manning was timely filed. The Remittitur Issue Although constitutional objections have been raised, it is now settled that a trial court which deems a jury’s award of damages excessive may order the plaintiff to remit a portion of the verdict or suffer a new trial. Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935). In diversity cases from the district courts in Tennessee this court has approved the Tennessee practice of permitting a plaintiff to accept remittitur under protest and then appeal the trial court's ruling. Mooney v. Henderson Portion Pack Co., Inc., 334 F.2d 7 (6th Cir. 1964). In the second appeal of the Mooney case this court dis cussed the underlying rationale of the practice of remittitur, holding that it is . . ancillary to ... [the] right of the trial judge to grant a new trial because of the excessiveness of the jury verdict.” Mooney v. Henderson Portion Pack Co., Inc., 339 F.2d 64, 66 (6th Cir. 1964). Since the action of a trial court in granting a new trial on the ground that a verdict is excessive is subject to review only for abuse of discretion, the same standard is applied to an order of remittitur. In order to determine whether there has been an abuse of discretion it is necessary to examine the evidence on damages and the considerations which led the trial judge to order remission of a portion of the verdict. It is undisputed that Jack Manning is totally and permanently disabled. At the time of the accident he was 39 years old, in good health and had been employed as a journeyman lineman for approximately 20 years. His earnings for the three years immediately preceding the accident and for the first half of 1970 were as follows: 1967 ..................$8,785.47 1968 .................. 9,531.63 1969 .................. 9,954.11 Jan.-June 30, 1970 ____ 5,512.14. The mortality tables in the Tennessee Statutes which were admitted and upon which a proper instruction was given, indicated a life expectancy for a person 41 years of age (his age at the time of trial) of" } ]

[ { "docid": "7536968", "title": "", "text": "907, wherein no fraud was found to exist, the court cited sections 1572, subd. 2, and 1710 together and made no endeavor to distinguish between the two. Hayter v. Fulmor, 1949, 92 CaI.App.2d 392, 206 P.2d 1101, 1105, states that constructive fraud under section 1573, subd. 1, can be grounded on negligent or careless misrepresentations. Wishnick v. Frye, supra, itself provides a vivid illustration of how the courts use the words fraud and deceit interchangeably, thereby strongly indicating that they have been equated. We therefore conclude that the language of the Gagne case, supra, applies with the same force and effect to California Civil Code Sections 1572, subd. 2, and 1573, subd. 1, as it does to § 1710. There being no necessity for a finding of scienter, the want of such finding is not error. Altho scienter is not required, it is plain that a finding, and evidence, of negligence is essential. In Williams v. Spazier, 1933, 134 Cal.App. 340, 25 P.2d 851, the Supreme Court reversed a judgment because of the absence of a finding •on the reasonableness of the defendant’s belief. Rule 52 of the Rules of Civil Procedure, 28 U.S.C.A., which governs this action, has been construed to require a finding on every material issue. The District judge did not comply with this salutory rule. The record is devoid of any finding of fact that the vendors were negligent, either in making statements based upon inadequate information, or in failing to make inquiries to ascertain the true boundaries of their property. Fortunately for appellees, a memorandum opinion accompanies the Findings of Fact, and Conclusions of Law. Rule 52(a) provides that, “If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein.” In Life Savers Corp. v. Cur-tiss Candy Co., 7 Cir., 1950, 182 F.2d 4, the Court of Appeals held that the failure to file any findings of fact and conclusions of law did not constitute fatal error where the memorandum opinion supplied the necessary findings. If the memorandum can be used to" } ]

[ { "docid": "12728002", "title": "", "text": "by the industry to stabilize sugar prices. He outlined the somewhat limited extent to which competition had been foreclosed by the National Sugar Act, 7 U.S.C.A. § 1100 et seq., and emphasized the still available room for competition in the sale and distribution of refined sugar. He examined the structure of the refined sugar industry and noted particularly the incentive which the legislative restrictions on production put on expansion by acquisition of existing refinery facilities as distinguished from expansion by the construction of new facilities. He recognized that refined sugar, both beet and cane, was the relevant market product. He considered the competition between the cane and beet refiners and pointed to its intensity in the “price-conscious industrial sugar market” where the parties were “prime forces.” He defined a ten-state area, the so-called River Territory in the middle west, in which the plaintiff and Colonial were in especially active competition and the market was subject to common economic forces. He noted the capacity and policy of Crystal, Colonial, and of the leading refiners for expansion both by acquisition and by competition. And he gave particular consideration to the impact of these and other forces in the ten-state area. These, then, were among the factors upon which the trial judge found a violation of § 7. Beyond doubt, he rightly understood the applicable law and sought to give it application. The defendant, however, asserts that the ultimate conclusion reached is not sufficiently supported by findings: that the only findings made go no further than to support a conclusion, pertinent only under a test of quantitative substantiality, of lessened competition between Crystal and Colonial — a test now obsolete under § 7 as amended. But this criticism is based, at least in large part, on the defendant’s contention that the only findings made in support of the ultimate conclusion of illegality were statements serially numbered under “Issue I” and “Issue II” in the “Findings of Fact, Conclusions of Law” below, 152 F.Supp. at pages 390 to 393, to the exclusion of additional, and non-contradictory, unnumbered findings appearing under the heading of “Opinion.”" }, { "docid": "11867083", "title": "", "text": "factual basis for the ultimate conclusion.’’ Although this was a bankruptcy case, Rule 52(a) was made applicable to bankruptcy cases by General Order in Bankruptcy No. 37, 11 U.S.C.A. following section 53. The language in Rule 52(a) was almost identical with that in Admiralty Rule 46Yz- Similar rules are entitled to the same construction. Walsh v. United States, et al., D.C., 81 F.Supp. 667. Therefore, we hold that it was a sufficient compliance with Admiralty Rule 46}/¿ for the findings of fact and conclusions of law to have been stated in the court’s opinion, providing they were adequate. We said in Life Savers Corp. v. Curtiss Candy Co., 7 Cir., 182 F.2d 4, 6; “* * * But this provision does not relieve the trial judge of making adequate findings. It only relieves him from doing what some courts had ruled was a requirement, that is, filing findings of fact and conclusions of law separate from the opinion. * * * However, the findings [of fact] and conclusions should adequately cover the contested issues. * * * ” (Emphasis added.) . . So • that adequate findings of fact and conclusions of law may be entered in this cause, the judgment appealed from will be vacated and the cause remanded, with directions to the district court to make such adequate additional findings on the question of libelant’s damages as the evidence supports, and to make conclusions of law wherein the award for such damages is fixed in an amount adequate to indemnify li-belant for wages, maintenance and cure as well as for damages for his injuries under the Jones Act, as indicated in this opinion, and to enter thereafter a judgment in favor of libelant in conformity with such amended findings of fact and conclusions of law. It is so ordered. . “In deciding cases of admiralty and maritime jurisdiction the court of first instance shall find the facts specially and state separately its conclusions of law thereon; and its findings and conclusions shall be entered of record * * . Although eight district judges are authorized to sit on" }, { "docid": "12728000", "title": "", "text": "Attorney General’s Committee to Study the Antitrust Laws, 115-17 (1955). Section 7 in its present content, so far as here relevant, now forbids the acquisition of the whole or any part of the stock or assets of a corporation where, in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition. 15 U.S.C.A. § 18. The legislative history of the amendment makes it plain that Congress intended by § 7 to forbid mergers which were beyond the reach of the Sherman Act as judicially interpreted. Sen.Rep. 1175, 81st Cong., 2d Sess. 4-5 (1950). Thus under § 7 as amended the Sherman Act test is no longer appropriate, H.R.Rep. 1191, 81st Cong., 1st Sess. 8 (1949), and conduct may fall under the ban of amended § 7 before it has attained the stature of an unreasonable restraint of trade. See Pillsbury Mills, Inc., 50 F.T.C. 555, 569 (1953). And the ban on a substantial lessening of competition “in any line of commerce in any section of the country,” requires, for determination of a violation, first, a definition of a relevant market in which a lessening of competition has probably occurred and, second, analysis of the nature and extent of the competition within that market. Consequently, the parties are agreed that an acquisition is not illegal because of its impact on competition between the corporations involved: that the proper test is one of the qualitative substantiality of the resulting effect on competition in the relevant market. We too agree. We hold that only an acquisition which in the long run may reasonably be expected to substantially lessen competition within a relevant market, will violate § 7 as amended. The opinion below makes it abundantly plain that the judge understood the proper test of illegality. He stressed the necessity for “consideration not merely of the competition between the two companies, but also the competitive situation of the industry.” He spoke of the conduct of sugar refiners in selling their product as “here of prime relevance” and sketched the history of successive attempts" }, { "docid": "12728007", "title": "", "text": "facilities each had sedulously developed by a program of aggressive competition in this area especially for the price-conscious industrial market for sugar. In the period 1951 to 1956 plaintiff and Colonial together had sold a little over 13% of all the sugar sold in the ten-state area, the plaintiff’s share of that market being somewhat greater than Colonial’s; and the sales to customers in this area who bought of both the plaintiff and Colonial constituted 30 % of the plaintiff’s sales in this area and 37% of Colonial’s. In 1956, about 50% of Colonial’s total sales were made in this area and an even larger percentage of the plaintiff’s sales. In the ten-state area a combination of the plaintiff and Colonial, if consummated, would rank second in volume of sales, exceeded only by The Great Western Sugar Company. The relevance of the ten-state market is not destroyed, we think, by the fact that one-third of its supply is scattered among others than the seven firms mentioned above in which two-thirds of the supply is concentrated. The defendant concedes that, as the judge below found, the “line of commerce” here involved is the distribution and the sale of refined sugar, both cane and beet. And it concedes further that comparable grades of cane and beet sugar are “commodities reasonably interchangeable by consumers for the same purposes” within the “relevant market” test laid down in United States v. E. I. du Pont de Nemours & Co., 351 U.S. 377, 395, 76 S.Ct. 994, 1007, 100 L.Ed. 1264. We agree and hold that it was not erroneous for the trial judge to find that the distribution of refined sugar, both beet and cane, constituted a single “line of commerce” within the meaning of § 7. Having defined a relevant market and a line of commerce, the judge below, giving consideration to appropriate factors earlier referred to in this opinion, made findings bearing on the effect which a merger or a common control of the two companies involved would probably have on competition in that line in that market. He concluded that such competition" }, { "docid": "12727997", "title": "", "text": "HINCKS, Circuit Judge. This is an action brought under § 16 of the Clayton Act, 15 U.S.C.A. § 26, charging a violation of § 7 of the Clayton Act, 15 U.S.C.A. § 18. Concededly the defendant had acquired a block of stock in the plaintiff1 corporation. By the action the plaintiff sought to enjoin it from making further acquisitions, from voting its stock and from obtaining representation on its Board of Directors, and to require it to divest itself of its present holdings. After trial, the trial judge filed a written decision in the form of an integral document containing findings of fact, conclusions of law and an opinion. 152 F.Supp. 387. He granted plaintiff a permanent injunction, but denied the request for divestiture. From this judgment and from an order denying a motion for new trial or for additional findings, the defendant has brought this appeal. The background facts are as follows. The plaintiff, American Crystal Sugar Company (“Crystal”), a processor and seller of beet sugar, was a publicly held corporation with about 423,000 shares of stock with full voting rights issued and outstanding. Crystal ranks eighth or ninth nationally in the production of refined sugar. In 1954, after several unsuccessful attempts to penetrate the beet sugar industry, the defendant, Cuban-American Sugar Company (“Cuban-American”), whose wholly owned subsidiary Colonial Sugars Company (“Colonial”) refines and sells cane sugar, began to purchase Crystal stock. Colonial stands eleventh nationally in the production of refined sugar. At time of trial, Cuban-American had acquired 97,100 shares, or about 23% of Crystal’s stock, and had demanded, unsuccessfully, representation on Crystal’s Board of Directors. If Cuban-Ameriean should gain control of Crystal, the combination of Crystal and Colonial would rank about fourth in the whole industry. The defendant contends that the court below wrongly interpreted § 7 of the Clayton Act. That section, designed to halt in their incipiency undue concentrations of economic power or monopoly, was amended by Congress in 1950 in two respects. Originally, the statute forbade mergers by the acquisition of stock where the effect might be substantially to lessen competition between the acquiring" }, { "docid": "12728289", "title": "", "text": "to land value, since they are not accompanied by findings as detailed as those of the commissioners and are less susceptible to careful review on appeal. Appellants submit a table to show that the trial court’s figures are with one minor exception precisely 20 per cent higher than the highest valuation set by a Government witness. Whether or not this was the trial court’s method of finding valuation and on what grounds it may be justified do not appear from the opinion below; and accordingly we must vacate the trial court judgment and remand for more detailed findings. We are not holding that its figures are wrong, only that as yet they are not supported by adequate findings.” Here the court had requested counsel to submit findings, and although both parties submitted detailed findings the court failed to pass upon them. Formal findings of fact and conclusions of law are not required in every case. Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A. But, here, where the opinion of the court is hardly more than a compilation of conclusions, it seems to me that formal findings of fact should have been made to supplement the opinion so that the parties and this Court could be informed of the bases on which the District Court rested its decision. See Life Savers Corp. v. Curtiss Candy Co., 7 Cir., 1950, 182 F.2d 4. Cf. United States v. Forness, 2 Cir., 1942, 125 F.2d 928, 942, certiorari denied City of Salamanca v. U. S., 316 U. S. 694, 62 S.Ct. 1293, 86 L.Ed 1764. Because of these patent errors, I would reverse and remand for a trial de novo. . From the record it is clear that Meadow Brook had decided on rezoning and the sale of its lands in 1953 after the State of New York had condemned some of its lands and before there had been any intimation of possible condemnation by the United States," }, { "docid": "5676147", "title": "", "text": "that common control of Colonial and Crystal would not only extinguish competition between them but also lessen competition in the sale of refined sugar in a ten state section. Thus, violation of § 7 of the Clayton Act has beeen established. The purchase by the defendant of Crystal stock was undertaken, as was frankly admitted by Mr. Keiser, as a step toward bringing about the common control of the two companies; and the defendant apparently still has this objective in mind. Defendant is in a financial position to continue to purchase additional shares of the plaintiff company and is today the largest single stockholder in plaintiff company. The amount of stock which it holds in plaintiff company is an amount which in many situations would be deemed “working control” and unless restrained it may be anticipated that defendant will pursue its program until it secures actual working control of the plaintiff company. The purchase by the defendant of stock of the plaintiff company, was accomplished with an illegal objective in mind. The acquisition by one corporation of all or any part of the stock of another corporation, competitor or not, is within the reach of § 7 of the Clayton Act, “* * * whenever the reasonable likelihood appears that the acquisition will result in a restraint of commerce * * *.” United States v. E. I. du Pont de Nemours & Co., 77 S.Ct. 872, 877. Conclusion The Court directs that judgment shall be entered for the plaintiff as follows: 1. Adjudging that the defendant has violated § 7 of the Clayton Act. 2. That a permanent injunction be issued enjoining defendant from directly or indirectly voting any shares of stock of the plaintiff company which it may own or control, either directly or indirectly, at any meeting of plaintiff’s stockholders, and from acquiring any direct or indirect representation on the board of directors of the plaintiff, and from acquiring additional stock of plaintiff. So much of the complaint as seeks a decree directing the defendant to divest itself of stock of the plaintiff company which it may now" }, { "docid": "11867082", "title": "", "text": "district court would suffice, but Chief Justice Hughes, in October, 1940, stated that such an interpretation would not be acceptable. The Chief Justice said that separately stated and numbered findings of fact and conclusions of law should be made a part of every record on appeal in an admiralty case. See page 164, Index Volume, Benedict on Admiralty (6th Ed.). Also, it must be recognized that in 1948 when the Supreme Court .modified Rule 52(a), Federal Rules of Civil Procedure, so that findings of fact and conclusions of law would be sufficient if included in the court’s opinion, the Supreme Court did not similarly modify Admiralty Rule 461^. It is a sufficient answer to point out that prior to the 1948 amendment the Supreme Court ■had handed down its opinion in Kelley v. Everglades Drainage District, 319 U.S. 415, 63 S.Ct. 1141, 1145, 87 L.Ed. 1485, wherein it said, “ * * * We bold onlv that there must be findings, stated either in the court’s opinion or separately, which are sufficient to indicate the factual basis for the ultimate conclusion.’’ Although this was a bankruptcy case, Rule 52(a) was made applicable to bankruptcy cases by General Order in Bankruptcy No. 37, 11 U.S.C.A. following section 53. The language in Rule 52(a) was almost identical with that in Admiralty Rule 46Yz- Similar rules are entitled to the same construction. Walsh v. United States, et al., D.C., 81 F.Supp. 667. Therefore, we hold that it was a sufficient compliance with Admiralty Rule 46}/¿ for the findings of fact and conclusions of law to have been stated in the court’s opinion, providing they were adequate. We said in Life Savers Corp. v. Curtiss Candy Co., 7 Cir., 182 F.2d 4, 6; “* * * But this provision does not relieve the trial judge of making adequate findings. It only relieves him from doing what some courts had ruled was a requirement, that is, filing findings of fact and conclusions of law separate from the opinion. * * * However, the findings [of fact] and conclusions should adequately cover the contested issues. *" }, { "docid": "5676146", "title": "", "text": "the number of significant firms in an industry reduces the incentive to reap a short term advantage by independent action, economic analysis indicates that increased concentration is detrimental to competition. In any event, that Colonial and Crystal when merged would form a stronger competitor does not by itself thereby establish that competition in the industry would be intensified. In forecasting the effect merger will have upon competition it is important to determine the opportunity for new firms to enter the industry. For if there is reasonable access to an industry amelioration of market structure conditions is possible. The evidence indicates that no new sugar refiners can be anticipated. In the last thirty years no new firms have entered the industry. Currently the quota system is a staunch barrier to new entry. Furthermore, there are positive signs of deterioration of market structure conditions. In recent years several refineries have been acquired by competitors. Thus the overall picture is of an industry tending toward increased concentration with no significant countervailing pressures. This record leads to the conclusion that common control of Colonial and Crystal would not only extinguish competition between them but also lessen competition in the sale of refined sugar in a ten state section. Thus, violation of § 7 of the Clayton Act has beeen established. The purchase by the defendant of Crystal stock was undertaken, as was frankly admitted by Mr. Keiser, as a step toward bringing about the common control of the two companies; and the defendant apparently still has this objective in mind. Defendant is in a financial position to continue to purchase additional shares of the plaintiff company and is today the largest single stockholder in plaintiff company. The amount of stock which it holds in plaintiff company is an amount which in many situations would be deemed “working control” and unless restrained it may be anticipated that defendant will pursue its program until it secures actual working control of the plaintiff company. The purchase by the defendant of stock of the plaintiff company, was accomplished with an illegal objective in mind. The acquisition by one" }, { "docid": "17129576", "title": "", "text": "selected must, therefore, both ‘correspond to the commercial realities’ of the industry and be economically significant. Thus, although the geographic market in some instances may encompass the entire Nation, under other circumstances it may be as small as a single metropolitan area.” In a § 7 proceeding, there is no pat formula for determining the relevant “section of the country.” The section may be the “area of effective competition,” United States v. Bethlehem Steel Corp., supra, 168 F.Supp. at page 596, or it may be the area “in which the seller operates, and to which the purchaser can practicably turn for supplies.” Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 327, 81 S.Ct. 623, 628, 5 L.Ed.2d 580 (1961). In any event, the geographic market must be selected on the basis of a “pragmatic, factual approach” not a “formal, legalistic one.” All Penn Grade crude is produced, bought, sold and refined in this area. No Penn Grade crude is brought into or shipped out of the area. It is the only geographic area wherein Penn Grade refiners compete for the purchase of their raw material — Penn Grade crude; and it is in fact the only geographic area wherein the producer-sellers of Penn Grade operate and to which the refiner-purchasers can turn for supplies. ' The holding in the El Paso Natural Gas Co. case, supra, at page 657, 84 S.Ct. at page 1047, that California is a “section of the country” for the production, transportation and sale of natural gas within the meaning of § 7 finds support for the Government’s contention here that the Appalachian Basin comprising southwestern New York, western Pennsylvania, eastern Ohio and the whole of West Virginia, where Penn Grade crude is produced, transported and sold is a “section of the country” within the meaning of § 7. I so find for the purpose of the present disposition. Accordingly, the evidence must be further examined in order to determine whether or not the Government has proved that competition will be lessened by the acquisition of Kendall by Pennzoil, or whether such acquisition will" }, { "docid": "11933643", "title": "", "text": "then entered July 21, 1961. The Conclusions overruled Woodmar’s objections and allowed petitioner’s claim, with interest, based on the seven bonds and coupons issued under Resolutions 1296 and 1399 as liens against proceeds of sales of particular properties securing payment of these bonds and coupons; directed that the claim should be paid in accordance with the Indiana law, but that the claim should not be paid until “all claims filed herein affecting the ultimate allocation of cash to this claim have been either disallowed or allowed in fixed amounts.” The Conclusions rested on extensive findings of fact made in the three opinions. In the first opinion, covering twenty-eight pages in the appendix, Judge Tehan discussed in detail eleven of the seventeen objections levelled at the validity of petitioner’s claim. In the second opinion, of seven appendix pages, he discussed the remaining six objections relating to “the amount in which that claim should be allowed.” In his final opinion, of twenty-three pages, Judge Tehan gave his views of Woodmar’s contentions bearing upon the proposed “findings, conclusions and order.” We see no merit in the contention that Woodmar was denied due process for want of findings as required by Fed.R.Civ.P. 52(a), 28 U.S.C.A. The three opinions, adopted in the Findings of Fact as additional findings are sufficient, American Crystal Sugar Co. v. Cuban-American S. Co., 2 Cir., 259 F.2d 524 (1958), to comply with Rule 52(a). This is clear from the decision in Lifesavers Corp. v. Curtiss Candy Co., 7 Cir., 182 F.2d 4 (1950), cited by Woodmar. There is no merit either in the argument that the District Court failed to decide the case before it. The court decided that Claim No. 441 was valid and ordered the claim allowed. The effect of the order was to establish the “law of the case” with respect to Woodmar’s objections. The court was not able to specify the amount to be paid petitioners, as the court pointed out, since the total amount of all similar claims and petitioners’ pro rata share of the total was not then known. The decision accomplished what the" }, { "docid": "12728015", "title": "", "text": "738. It is true that the defendant’s president testified that common control of the two companies would make for economies in the amount and cost of working capital and in the purchase of supplies. But this testimony was neither specific nor documented. The judge may well have concluded that in justice to its minority stockholders other than the defendant, the plaintiff under the defendant’s control would not furnish working capital to Colonial at a charge less than that it now pays, and vice versa. He well may have been skeptical as to the possibility of economy in the purchase of sugar bags by combining orders for plaintiff’s use in Minnesota and for Colonial’s use in Louisiana. He may have failed to believe that due to the seasonal incidents of cane and beet production common control would promote economies in labor costs not available without such control. That the threat of damage was imminent, on the facts and findings was too plain to deserve discussion. Finally, the plaintiff objects on the ground of hearsay to the trial court’s admission in evidence of fifteen letters, many written after action brought, addressed to plaintiff by brokers within the ten-state area, expressing concern over the competition offered by Colonial. We agree that the letters are lacking in the characteristics of trustworthiness and reliability which would make them admissible under the Federal Business Entry Statute, 28 U.S.C.A. § 1732. See United States v. Grayson, 2 Cir., 1948, 166 F.2d 863. But the trial judge received the letters not as proof of competition recited therein but only as evidence of the authors’ state of mind. However that may be, it is clear that the finding of competition was based on other substantial and competent evidence. The error, if there was one, was harmless. Affirmed. . Throughout this opinion we shall refer to the appellant as the defendant and the appellee as the plaintiff. . The full decision below having been reported, we shall not attempt to include in this opinion a complete statement of the facts. . As to this, even the defendant agrees. . Arkansas," }, { "docid": "12728005", "title": "", "text": "decision — the unnumbered findings in his “opinion” as well as the earlier stated numbered findings. Accordingly, we may properly test the validity of his holding on that same basis. Stone v. Farnell, 9 Cir., 239 F.2d 750, at page 755; Life Savers Corp. v. Curtiss Candy Co., 7 Cir., 182 F.2d 4, at pages 6 and 7. We doubt that this ruling is in conflict with such eases as Ohlinger v. United States, 9 Cir., 219 F.2d 310, and Federal Trade Commission v. B. F. Goodrich Company, 100 U.S.App.D.C. 58, 242 F.2d 31, at page 35. For in these cases, the written decision did not make it plain, as does the decision here, that the trial judge intended to base his holding not only on the formal, numbered, findings but also on findings included in the opinion. The defendant claims error in the selection of the ten-state area as a proper geographic market or section of the country in which lessening of competition would probably result from common control of the two companies involved. We think, however, that the relevance of the ten-state market was, on the whole, sufficiently supported by evidence and findings. To the south of this area were located the cane refineries of Louisiana including that of Colonial: inside its northern perimeter and along its northwesterly border were the factories of beet processors, including most of the plaintiff’s factories. In this area, about two-thirds of all the sugar sold was supplied by seven producers, three of whom were beet producers, viz., The Great Western Sugar Co., The Amalgamated Sugar Co., and the plaintiff, and four of whom were cane refiners, viz., California and Hawaiian Sugar Refining Corp. (C & H), American Sugar Refinery Co. (American), and National Sugar Refining Co. (National), and Colonial. By means of cheap river transportation and short railroad hauls Colonial, with its refinery in Louisiana, and the plaintiff, with its several refineries just within the northern perimeter of the ten-state area, were better situated to supply this territory than other more distant markets, and this locational advantage over refiners having more distant" }, { "docid": "11933644", "title": "", "text": "and order.” We see no merit in the contention that Woodmar was denied due process for want of findings as required by Fed.R.Civ.P. 52(a), 28 U.S.C.A. The three opinions, adopted in the Findings of Fact as additional findings are sufficient, American Crystal Sugar Co. v. Cuban-American S. Co., 2 Cir., 259 F.2d 524 (1958), to comply with Rule 52(a). This is clear from the decision in Lifesavers Corp. v. Curtiss Candy Co., 7 Cir., 182 F.2d 4 (1950), cited by Woodmar. There is no merit either in the argument that the District Court failed to decide the case before it. The court decided that Claim No. 441 was valid and ordered the claim allowed. The effect of the order was to establish the “law of the case” with respect to Woodmar’s objections. The court was not able to specify the amount to be paid petitioners, as the court pointed out, since the total amount of all similar claims and petitioners’ pro rata share of the total was not then known. The decision accomplished what the selection of No. 441, as a test, was intended to do for the remaining claims. We do not find the judgment erroneous because it, under the circumstances of this case, does not give claimants the money due to them immediately and did not therefore finally decide the issue. The rule in American Service Co. v. Henderson, 4 Cir., 120 F.2d 525, 530, 135 A.L.R. 1414 (1941), does not, nor do any of the other cases cited by Woodmar, support the claim of error. Nor is the judgment here inadequate as the one in Buffum v. Maryland Cas. Co., 9 Cir., 77 F.2d 761 (1935), obviously was. We think the District Court’s judgment as to the validity and amount of the claim at bar is final. The District Court could not prudently have decided more at the time. Upon the order of distribution, the details of payment and amounts of claims will undoubtedly be set forth. Judge Tehan did not delegate his responsibility when he directed plaintiffs’ attorneys to submit proposed findings and conclusions in accordance" }, { "docid": "12728003", "title": "", "text": "both by acquisition and by competition. And he gave particular consideration to the impact of these and other forces in the ten-state area. These, then, were among the factors upon which the trial judge found a violation of § 7. Beyond doubt, he rightly understood the applicable law and sought to give it application. The defendant, however, asserts that the ultimate conclusion reached is not sufficiently supported by findings: that the only findings made go no further than to support a conclusion, pertinent only under a test of quantitative substantiality, of lessened competition between Crystal and Colonial — a test now obsolete under § 7 as amended. But this criticism is based, at least in large part, on the defendant’s contention that the only findings made in support of the ultimate conclusion of illegality were statements serially numbered under “Issue I” and “Issue II” in the “Findings of Fact, Conclusions of Law” below, 152 F.Supp. at pages 390 to 393, to the exclusion of additional, and non-contradictory, unnumbered findings appearing under the heading of “Opinion.” We think, however, that this contention stems from misapprehension of the basic structure of the decision below. For that decision comprised one integral writing which included numbered “findings of fact” addressed to specified “Issues” each capped by a subsidiary and numbered “conclusion.” None of these numbered conclusions purported to state the ultimate conclusion of illegality: that was not articulated until the last page of the section of the decision denominated “Opinion” which followed the numbered “findings” and ‘“conclusions.” 152 F.Supp. at page 400. There, after reciting and discussing many facts not included in the earlier, numbered, findings, the judge wrote: “This record leads to the conclusion that the common control of Colonial and Crystal would not only extinguish competition between them but also lessen competition in the sale of refined sugar in a ten state section. Thus, violation of § 7 of the Clayton Act has been established.” (Emphasis added.) We think it altogether plain that the judge meant his ultimate holding of illegality to rest on the findings contained in all sections of his" }, { "docid": "12728001", "title": "", "text": "of the country,” requires, for determination of a violation, first, a definition of a relevant market in which a lessening of competition has probably occurred and, second, analysis of the nature and extent of the competition within that market. Consequently, the parties are agreed that an acquisition is not illegal because of its impact on competition between the corporations involved: that the proper test is one of the qualitative substantiality of the resulting effect on competition in the relevant market. We too agree. We hold that only an acquisition which in the long run may reasonably be expected to substantially lessen competition within a relevant market, will violate § 7 as amended. The opinion below makes it abundantly plain that the judge understood the proper test of illegality. He stressed the necessity for “consideration not merely of the competition between the two companies, but also the competitive situation of the industry.” He spoke of the conduct of sugar refiners in selling their product as “here of prime relevance” and sketched the history of successive attempts by the industry to stabilize sugar prices. He outlined the somewhat limited extent to which competition had been foreclosed by the National Sugar Act, 7 U.S.C.A. § 1100 et seq., and emphasized the still available room for competition in the sale and distribution of refined sugar. He examined the structure of the refined sugar industry and noted particularly the incentive which the legislative restrictions on production put on expansion by acquisition of existing refinery facilities as distinguished from expansion by the construction of new facilities. He recognized that refined sugar, both beet and cane, was the relevant market product. He considered the competition between the cane and beet refiners and pointed to its intensity in the “price-conscious industrial sugar market” where the parties were “prime forces.” He defined a ten-state area, the so-called River Territory in the middle west, in which the plaintiff and Colonial were in especially active competition and the market was subject to common economic forces. He noted the capacity and policy of Crystal, Colonial, and of the leading refiners for expansion" }, { "docid": "22736885", "title": "", "text": "to the Federal Power Commission for permission to acquire the assets of Pacific Northwest. On December 23, 1959, the Commission approved and the merger was effected on December 31, 1959. In 1962 we set aside the Commission’s order, holding that it should not have acted until the District Court had passed on the Clayton Act issues. California v. Federal Power Comm’n, 369 U. S. 482. Meanwhile (in October 1960) the United States amended its complaint so as to include the asset acquisition in the charged violation of the Clayton Act. There was a trial, and after oral argument the judge announced from the bench that judgment would be for appellees and that he would not write an opinion. He told counsel for appellees “Prepare the findings and conclusions and judgment.” They obeyed, submitting 130 findings of fact and one conclusion of law, all of which, we are advised, the District Court adopted verbatim. Those findings, though not the product of the workings of the district judge’s mind, are formally his; they are not to be rejected out-of-hand, and they will stand if supported by evidence. United States v. Crescent Amusement Co., 323 U. S. 173, 184-185. Those drawn with the insight of a disinterested mind are, however, more helpful to the appellate court. See 2B Barron and Holtzoff, Federal Practice and Procedure (Wright ed. 1961), § 1124. Moreover, these detailed findings were “mechanically adopted,” to use the phrase of the late Judge Frank in United States v. Forness, 125 F. 2d 928, 942, and do not reveal the discerning line for decision of the basic issue in the case. On review of the record- — which is composed largely of undisputed evidence — we conclude that “the effect of such acquisition may be substantially to lessen competition” within the meaning of § 7 of the Clayton Act. There can be no doubt that the production, transportation, and sale of natural gas is a “line of commerce” within the meaning of § 7. There can also be no doubt that California is a “section of the country” as that phrase is" }, { "docid": "12728004", "title": "", "text": "We think, however, that this contention stems from misapprehension of the basic structure of the decision below. For that decision comprised one integral writing which included numbered “findings of fact” addressed to specified “Issues” each capped by a subsidiary and numbered “conclusion.” None of these numbered conclusions purported to state the ultimate conclusion of illegality: that was not articulated until the last page of the section of the decision denominated “Opinion” which followed the numbered “findings” and ‘“conclusions.” 152 F.Supp. at page 400. There, after reciting and discussing many facts not included in the earlier, numbered, findings, the judge wrote: “This record leads to the conclusion that the common control of Colonial and Crystal would not only extinguish competition between them but also lessen competition in the sale of refined sugar in a ten state section. Thus, violation of § 7 of the Clayton Act has been established.” (Emphasis added.) We think it altogether plain that the judge meant his ultimate holding of illegality to rest on the findings contained in all sections of his decision — the unnumbered findings in his “opinion” as well as the earlier stated numbered findings. Accordingly, we may properly test the validity of his holding on that same basis. Stone v. Farnell, 9 Cir., 239 F.2d 750, at page 755; Life Savers Corp. v. Curtiss Candy Co., 7 Cir., 182 F.2d 4, at pages 6 and 7. We doubt that this ruling is in conflict with such eases as Ohlinger v. United States, 9 Cir., 219 F.2d 310, and Federal Trade Commission v. B. F. Goodrich Company, 100 U.S.App.D.C. 58, 242 F.2d 31, at page 35. For in these cases, the written decision did not make it plain, as does the decision here, that the trial judge intended to base his holding not only on the formal, numbered, findings but also on findings included in the opinion. The defendant claims error in the selection of the ten-state area as a proper geographic market or section of the country in which lessening of competition would probably result from common control of the two companies involved." }, { "docid": "8468778", "title": "", "text": "that connection, defendant points to United States v. Penn-Olin Chem. Co., supra, 378 U.S. at 177, 84 S. Ct. 1720 decided under Clayton § 7 and after Lexington, where the Supreme Court, in remanding the case, directed the district court to observe a number of factors in assessing the probability of a substantial lessening of competition, including “the number and power of the competitors in the relevant market”. Whatever the merits of defendant’s arguments, they are addressed to the wrong forum, for we must apply the Sherman Act as it is interpreted, and in accordance with rules enunciated, by the Supreme Court. We hold, therefore, that the elimination of substantial competition previously existing between the parties to this merger in the national market itself constitues an unreasonable restraint ox trade, violative of § 1 of the Sherman Act, and, a fortiori, establishes a reasonable probability of a substantial lessening of competition, violative of § 7 of the Clayton Act. CONCLUSIONS 1. This court has jurisdiction to determine the cause. 2. The approval of the merger by the Board of Governors of the Federal Reserve System is not a final and exclusive determination of its legality. 3. The merger of Manufacturers and Hanover is a combination in restraint of trade in commercial banking in the New York metropolitan area, as defined herein, and in the United States, in violation of Section 1 of the Sherman Act. 4. There is a reasonable probability that the merger of Manufacturers and Hanover may substantially lessen competition or tend to create a monopoly in commercial banking in the New York metropolitan area, as defined herein, and in the United States, in violation of Section 7 of the Clayton Act. The foregoing opinion, footnotes, and Appendices constitute the court’s findings of fact and conclusions of law, as required by Rule 52(a), Fed.R.Civ.P., 28 U.S.C. Both sides have submitted numerous proposed findings of fact, many of which we find inconsistent with our findings, irrelevant, immaterial, bad in form, or not supported by the evidence. We, therefore, reject all of them except to the extent that they are" }, { "docid": "13934261", "title": "", "text": "findings of fact made by the judge below were correct and were based upon substantial evidence, and that proper conclusions as to the application of the law to the facts were reached. Since there was no evidence in the record which cast any doubt upon appellee's good faith abandonment of the practices which constituted an infringement of appellant's registered trade-mark and none to indicate a probability that such acts would be resumed, the injunction was rightly denied, for the reason that past acts and practices furnish no basis for injunctive relief when, as here, they have been effectively discontinued. Industrial Ass'n of San Francisco v. United States, 268 U.S. 64, 84, 45 S.Ct. 403, 69 L.Ed. 849. Cf. 28 Am.Jurisprudence 201. Likewise, and with respect to the alleged unfair competition, there was insufficient evidence to establish that appellee's product was marketed in such a manner that the public in general using ordinary care would be mistaken in selecting one of appellee's cartridges when intending to select one manufactured by appellant. To the contrary, it was conclusively shown that the major purchasers of the cartridges were \"experts\". See Pyle National Co. v. Oliver Electric Mfg. Co., 8 Cir., 281 F. 632, 634. Here, appellant failed also to show actual or probable deception, and the existence of a mere possibility of deception does not in and of itself constitute a basis on which to sustain a charge of unfair competition. \"In the absence of proof of any confusion or of at least probable injury to the plaintiff's business, the law is too well settled to require further discussion that no relief may be granted on the ground of unfair competition.\" El Chico, Inc. v. El Chico Cafe, 5 Cir., 214 F.2d 721, 725, and the numerous cases cited therein. Finally, and as to the claim of infringement of common-law trademark, we think it is plain that colors or a combination of colors of themselves arc not subject to trade-mark monopoly, Life Savers Corp. v. Curtiss Candy Co., 7 Cir., 182 F.2d 4, Campbell Soup Co. v. Armour & Co., 3 Cir., 175" } ]

[ { "docid": "23039068", "title": "", "text": "must be disregarded for jurisdictional purpose. See, e.g., Keating v. Shell Chemical Co., 610 F.2d 328, 333 (5th Cir.1980); Burden v. General Dynamics Corp., 60 F.3d 213, 217 (5th Cir.1995). See also, e.g., LeJeune v. Shell Oil Co., 950 F.2d 267, 271 (5th Cir.1992) (“In this circuit, a removing party’s claim of fraudulent joinder to destroy diversify is viewed as similar to a motion for summary judgment.... A court is to pierce the pleadings to determine whether, under controlling state law, the non-removing party has a valid claim against the non-diverse parties”); Corriere v. Sears, Roebuck and Co., 893 F.2d 98, 100 (5th Cir.), cert. denied, 498 U.S. 817, 111 S.Ct. 60, 112 L.Ed.2d 35 (1990) . (“When determining fraudulent joinder, the district court may look to the facts as established by summary judgment evidence as well as the controlling state law”). Thus it is clear that although a state court complaint on its face may allege a state law claim against an in-state defendant that does not preclude it from being removable (by-the non-resident defendant), when filed, if the plaintiffs pleading is pierced and it is shown that as a matter of law there is no reasonable basis for predicting that the plaintiff might establish liability on that claim against the in-state defendant. Moreover, plaintiffs’ argument in this respect ignores the fact ■ that section 1446(b) is concerned only with the timing of removal, and not at all with what must be shown in order to remove or how that showing may or must be made. The first paragraph of section 1446(b) sets forth the general rule, that the notice of removal must be filed within thirty days from “the service of summons upon the defendant” and its “receipt” of “the initial pleading” on which the action is based. However, the second paragraph of section 1446(b) provides that, under the there stated dr-cumstance, the starting date of the thirty day period within which the notice of removal must be filed shall be later than the date provided in the first paragraph. Thus, the second paragraph states that “[i]f the" } ]

[ { "docid": "11065835", "title": "", "text": "foreign corporation is deemed a citizen of the place where it was incorporated and where it has its principal place of business. Panalpina Welttrans- port GmBh v. Geosource, Inc., 764 F.2d 352, 354 (5th Cir.1985). A corporation incorporated outside the United States is deemed an alien for diversity purposes. Chick Kam Choo, 764 F.2d at 1152 (lack of diversity jurisdiction between citizen of Singapore and Liberian corporation with principal place of business in New Jersey). In this case, AeroMexieo and plaintiffs are citizens of Mexico. If AeroMexieo is fraudulently joined, and its citizenship disregarded, this court has federal removal jurisdiction based on diversity. “The burden of persuasion placed upon those who cry ‘fraudulent joinder’ is indeed a heavy one.” B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. Unit A Dec.1981). To show fraudulent joinder, “the removing party must demonstrate either ‘outright fraud in the plaintiffs recitation of jurisdictional facts’ or that ‘there is absolutely no possibility that the plaintiff will be able to establish a cause of action against the in-state defendant in state court.’ ” Rodriguez v. Sabatino, 120 F.3d 589, 591 (5th Cir.1997) (quoting Burden v. General Dynamics Corp., 60 F.3d 213, 217 (5th Cir.1995) and Cavallini v. State Farm Mut. Auto Ins., 44 F.3d 256, 259 (5th Cir.1995)) (citations omitted). “After all disputed questions of fact and all ambiguities in the controlling state law are resolved in favor of the non-removing party, the court determines whether that party has any possibility of recovery against the party whose joinder is questioned.” Garriere v. Sears, Roebuck & Co., 893 F.2d 98, 100 (5th Cir.1990). However, the courts have more recently emphasized that the possibility of recovery must be reasonable, not merely hypothetical or speculative. “If there is ‘arguably a reasonable basis for predicting that the state law might impose liability on the facts involved,’ then there is no fraudulent joinder.” Badon v. RJR Nabisco Inc., 236 F.3d 282, 286 (5th Cir.2000) (quoting Jer-nigan v. Ashland Oil Inc., 989 F.2d 812, 816 (5th Cir.1993)). This possibility must be reasonable, not merely theoretical. See Great Plains Trust" }, { "docid": "15193367", "title": "", "text": "is questioned. If there is arguably a reasonable basis for predicting that the state law might impose liability on the facts involved, then there is no fraudulent joinder. This possibility, however, must be reasonable, not merely theoretical. Travis, 326 F.3d at 648 (emphasis in original) (citing Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir.2002). Further, concluso-ry or generic allegations of wrongdoing on the part of the non-diverse defendant are not sufficient to show that the defendant was not fraudulently joined. Badon v. RJR Nabisco, Inc., 224 F.3d 382, 392-93 (5th Cir.2000). Therefore, removal is not precluded merely because the state court complaint, on its face, sets forth a state law claim against a non-diverse defendant. Badon, 224 F.3d at 390. Removal is proper “if the plaintiffs pleading is pierced and it is shown that as a matter of law there is no reasonable basis for predicting that the plaintiff might establish liability on that claim against the in-state defendant.” Id. When conducting a fraudulent joinder analysis, a court must resolve all disputed questions of fact and ambiguities of law in favor of the non-removing party, Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir.1992), but “only when there exists an actual controversy, i.e. when both parties have submitted evidence of contradictory facts.” Badon, 224 F.3d at 394 (emphasis in original). A court should not, “in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts” to support his claims against the non-diverse defendant. Id. (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994)). In the event the court, after resolving all disputed questions of fact and ambiguities of law in favor of the non-removing party, finds that there is “arguably a reasonable basis for predicting that the state law might impose liability on the facts involved, then there is no fraudulent joinder” and hence no basis for asserting diversity of citizenship jurisdiction. Jernigan, 989 F.2d at 816. (B) Analysis — Fraudulent Joinder Diversity of citizenship jurisdiction requires satisfaction of" }, { "docid": "22136669", "title": "", "text": "possibility”. E.g., B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir.1981) (“the removing party must show ... there is no possibility that the plaintiff would be able to establish a cause of action”(emphasis added)); Parks, 808 F.2d at 477 (“there must be some reasonable basis for believing that there is joint liability. The joinder is fraudulent if its clear that ... the facts asserted ... could not possibly create ... liability ...” (emphasis added)). Any argument that a gap exists between the “no possibility” and “reasonable basis” of recovery language was recently narrowed, if not closed. Badon v. RJR Nabisco, Inc. held: Plaintiffs appear to argue that any mere theoretical possibility of recovery under local law — no matter how remote or fanciful — suffices to preclude removal. We reject this contention. As cited authorities reflect, there must at least be arguably a reasonable basis for predicting that state law would allow recovery in order to preclude a finding of fraudulent joinder. 236 F.3d 282, 286 n. 4 (5th Cir.2000) (first emphasis in original). Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co. confirmed this point: [T]he court determines whether that party has any possibility of recovery against the party whose joinder is questioned. If there is arguably a reasonable basis for predicting that the state law might impose liability on the facts involved, then there is no fraudulent joinder. This possibility, however, must be reasonable, not merely theoretical. 313 F.3d 305, 312 (5th Cir.2002)(emphasis added; internal citation and quotations omitted; citing Badon). Our cases have also noted the similarity of the test for fraudulent joinder and the test for a Rule 12(b)(6) motion alleging failure to state a claim. For instance, Great Plains Trust states that the Rule 12(b)(6) standard is: “[T]he court should not dismiss the claim unless the plaintiff would not be entitled to relief under any set of facts or any possible theory that he could prove consistent with the allegations in the complaint”. Id. at 313 (emphasis added; citing Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.1999)). It states" }, { "docid": "23676202", "title": "", "text": "court denied Plaintiffs’ remand motions, reasoning: Individual Defendants were fraudulently joined; therefore, jurisdiction was valid under § 1332. It held most of Plaintiffs’ claims time-barred under Mississippi’s general three-year statute of limitations, Miss.Cobe. Ann. § 15-1-49(1). For Plaintiffs’ remaining claims, it concluded there was no reasonable basis for predicting Individual Defendants could be liable. Howard v. CitiFinancial, 195 F.Supp.2d 811 (S.D.Miss.2002); Ross v. CitiFinancial, No. 5:01-CV-185BN, 2002 WL 461567 (S.D.Miss.2002). (A number of Plaintiffs had been voluntarily dismissed or did not assert claims against Individual Defendants.) II. The interlocutory appeal for each action presents four issues: (1) whether the district court applied the correct standard in holding non-diverse defendants were fraudulently joined; (2) whether, under Mississippi law, an affirmative act is required to toll the statute of limitations for the claims at issue; (3) whether a party may justifiably rely on an oral representation contrary to the terms of a written contract; and (4) whether a fiduciary relationship arises in first party insurance contracts such as those at issue. A. Fraudulent joinder is established by showing: (1) actual fraud in pleading jurisdictional facts; or (2) inability of the defendant to establish a cause of action against the non-diverse plaintiff. Travis v. Irby, 326 F.3d 644, 647 (5th Cir.2003) (citing Griggs v. State Farm Lloyds, 181 F.3d 694, 699 (5th Cir.1999)). At issue is the standard to be applied for the second of the two means for showing fraudulent join-der. The district court noted that the removing party has the burden of showing fraudulent joinder, but that Plaintiffs could not rest upon mere allegations in their pleadings. Rather, the court could pierce the pleadings. It concluded: “In the event the court, after resolving all disputed questions of fact and ambiguities of law in favor of the non-removing party, finds that there is ‘arguably a reasonable basis for predicting that the state law might impose liability on the facts involved, then there is no fraudulent joinder’ and hence no basis for asserting diversity of citizenship jurisdiction”. Howard, 195 F.Supp.2d at 818 (emphasis added) (citing Jemigan v. Ashland Oil, Inc., 989 F.2d 812," }, { "docid": "15193368", "title": "", "text": "a court must resolve all disputed questions of fact and ambiguities of law in favor of the non-removing party, Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir.1992), but “only when there exists an actual controversy, i.e. when both parties have submitted evidence of contradictory facts.” Badon, 224 F.3d at 394 (emphasis in original). A court should not, “in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts” to support his claims against the non-diverse defendant. Id. (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994)). In the event the court, after resolving all disputed questions of fact and ambiguities of law in favor of the non-removing party, finds that there is “arguably a reasonable basis for predicting that the state law might impose liability on the facts involved, then there is no fraudulent joinder” and hence no basis for asserting diversity of citizenship jurisdiction. Jernigan, 989 F.2d at 816. (B) Analysis — Fraudulent Joinder Diversity of citizenship jurisdiction requires satisfaction of the following two factors: (1) amount in controversy; and (2) diversity of citizenship. These requirements are set forth in 28 U.S.C. § 1332(a), which states in relevant part “[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between — (1) citizens of different States.... ” The subject Complaint does not specify a dollar amount of damages sought by Plaintiffs. However, the Notice of Removal alleges an amount in controversy exceeding $75,000, and this allegation is not denied by Plaintiffs. Based on Plaintiffs’ silence on the amount in controversy issue, and based on the nature of the subject claims, the Court finds that the amount in controversy requirement of § 1332(a) is met. The issue to be resolved is whether the fifty-two non-diverse individual Defendants were fraudulently joined. The individual Defendants were allegedly managers at various Wal-Mart or Sam’s stores at which Plaintiffs were employed throughout Mississippi. As managers at Wal-Mart and Sam’s, Plaintiffs contend" }, { "docid": "22891205", "title": "", "text": "order to defeat diversity jurisdiction. Plaintiffs contend that the district court erred in this finding. “The burden of persuasion placed upon those who cry ‘fraudulent joinder’ is indeed a heavy one.” B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir.1981). In Dodson v. Spiliada Maritime Corp., 951 F.2d 40 (5th Cir.1992), the standard for evaluating such a claim were summarized as follows: Where charges of fraudulent joinder are used to establish [federal] jurisdiction, the removing party has the burden of proving the claimed fraud.... To prove their allegation of fraudulent join-der [removing parties] must demonstrate that there is no possibility that [plaintiff] would be able to establish a cause of action against them in state court. In evaluating fraudulent joinder claims, we must initially resolve all disputed questions of fact and all ambiguities in the controlling state law in favor of the non-removing party. We are then to determine whether that party has any possibility of recovery against the party whose joinder is questioned. Dodson, 951 F.2d at 42 (citations omitted) (emphasis added). In many instances, we have cautioned against “pretrying a case to determine removal jurisdiction,” stating that fraudulent joinder claims can be resolved by “piercing the pleadings” and con sidering summary judgment-type evidence such as affidavits and deposition testimony. Cerriere v. Sears, Roebuck and Co., 893 F.2d 98, 100 (5th Cir.1990). The district court failed to follow this procedure. Consequently, we are limited to a review of the allegations in the complaint in determining whether Makamson could be subject to individual liability. The question of whether plaintiffs could possibly establish a claim against Makamson in state court is resolved by reference to Mississippi law. In circumstances where a defendant acts as an agent for a known principal, the general rule in Mississippi law is that the defendant-agent incurs no liability for a principal’s breach of duty. See Moore v. Interstate Fire Insurance Company, 717 F.Supp. 1193 (S.D.Miss.1989); Schoonover v. West American Ins. Co., 665 F.Supp. 511 (S.D.Miss.1987) (interpreting Mississippi law). On the other hand, an agent for a disclosed principal can be held personally liable" }, { "docid": "20583605", "title": "", "text": "just that: the claim need not be a sure-thing, but it must have a basis in the alleged facts and the applicable law.” 203 Fed.Appx. at 913. The Fifth Circuit recognized the inconsistencies in various articulations of the standard for fraudulent joinder and directly addressed the problem in Travis v. Irby, 326 F.3d 644 (5th Cir.2003): Neither our circuit nor other circuits have been clear in describing the fraudulent joinder standard. The test has been stated by this court in various terms, even within the same opinion. For example, the Griggs [v. State Farm Lloyds, 181 F.3d 694 (5th Cir.1999),] opinion states, To establish that a non-diverse defendant has been fraudulently joined to defeat diversity, the removing party must prove ... that there is absolutely no possibility that the plaintiff will be able to establish a cause of action .against the non-diverse defendant in state court. 181 F.3d at 699 (emphasis added)(citing Burden v. Gen. Dynamics Corp., 60 F.3d 213, 217 (5th Cir.1995)). The Griggs opinion later restates that test as follows — “Stated differently, we must determine whether there is any reasonable basis for predicting that [the plaintiff] might be able to establish [the non-diverse defendant’s] liability on the pleaded claims in state court.” 181 F.3d at 699 (emphasis added). Similarly, in summing up federal law, Moore’s Federal Practice states at. one point:- “To establish fraudulent joinder, a party must demonstrate ... the absence of any possibility that the opposing party has stated a claim under state law.” 16 Moore’s Federal Practice § 107.14[2][c][iv][A] (emphasis added). It then comments: “The- ultimate question is whether there is arguably a reasonable basis for predicting that state law might impose liability on the facts involved.” ■ Although these tests appear dissimilar, “absolutely no possibility” vs. “reasonable basis,” we must assume that they are meant to be equivalent because each is presented as a restatement of the other. 326 F.3d at 647 (emphases in original). The Fifth Circuit has settled upon this phrasing: . [T]he test for fraudulent joinder is whether the defendant has demonstrated .that there is no possibility of recovery, by" }, { "docid": "4374520", "title": "", "text": "arguing that diversity jurisdiction is. lacking in this case inasmuch as the retailer defendant Flatland Ford, Lincoln, Mercury, Inc. (“Flatland”) is, like plaintiff, a Mississippi resident. Defendants counter that Flatland was fraudulently/improperly joined for the purposes of defeating removal jurisdiction and that the residence of this defendant should therefore be disregarded for jurisdictional purposes. The removing party, which is urging jurisdiction on the court, bears the burden of demonstrating that jurisdiction is proper due to fraudulent/improper joinder. Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir.1992). The Fifth Circuit has stated: The burden of persuasion placed upon those who cry “fraudulent joinder” is indeed a heavy one. In order to establish that an in-state defendant has been fraudulently joined, the removing party must show either that there is no possibility that the plaintiff would be able to establish a cause of action against the instate defendant in state court; or that there has been outright fraud in the plaintiffs pleadings of jurisdictional facts. B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir.1981). The Fifth Circuit has reaffirmed that it “is insufficient that there be a mere theoretical possibility of recovery;” to the contrary, there must “at least be arguably a reasonable basis for predicting that state law would allow recovery in order to preclude a finding of [improper] joinder.” Travis v. Irby, 326 F.3d 644, 648 (5th Cir.2003)(citing Badon v. RJR Nabisco Inc., 224 F.3d 382, 386 (5th Cir.2000)). This motion to remand involves an important issue of law, namely whether Miss. Code. Ann. § 11-1-64, which was enacted as part of the Legislature’s Fall 2002 special session on “tort reform,” entitles “innocent sellers” to dismissal in federal court upon a finding of improper joinder. This is an issue about which reasonable minds can disagree. Section 11-1-64 is a rather peculiar statute, permitting sellers whose liability is “ based solely on [their] status as a seller in the stream of commerce” to obtain dismissals in state court, while still nominally being considered defendants for jurisdictional purposes. Specifically, the statute, which only applies to cases filed" }, { "docid": "18095707", "title": "", "text": "on “(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court.” Travis v. Irby, 326 F.3d 644, 647 (5th Cir.2003). Because neither the parties nor the district court contends there was actual fraud, we look only to the second test. Though our earlier fraudulent joinder cases had been uncertain as to whether a removing defendant must demonstrate an absence of any possibility of recovery in state court, we clarified in Travis that the defendant must demonstrate only that there is no reasonable basis for predicting that the plaintiff will recover in state court. Id. Thus, the Travis court noted the similarity of the standard to that used with respect to a Federal Rule of Civil Procedure 12(b)(6) motion, in that the crucial question is whether the plaintiff has set out a valid claim under applicable state law. Id. Critically, all disputed questions of fact and all ambiguities in state law must be resolved in favor of the plaintiff. Id. (citing Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir.2002)). Further, the plaintiff may not rely solely on the allegations in his complaint; the court may “pierce the pleadings” and consider summary judgment-type evidence to determine whether the plaintiff truly has a reasonable possibility of recovery in state court. Id. at 648-49. The district court correctly recited this standard from Travis. Nevertheless, plaintiffs contend that the court “improperly expanded its review” beyond whether there is a reasonable possibility that a Mississippi court might impose liability.... In making that argument, the plaintiffs repeatedly emphasize the “possibility of recovery” language while giving only lip service to the “reasonable” modifier. To that extent, the district court correctly evaluated the fraudulent joinder claim. Although recognizing that Mississippi law on the subject is cloudy, the court disregarded the theoretical possibility of recovery and considered whether there was a reasonable possibility under state law. For example, plaintiffs devote considerable energy to the contention that the very fact that Mississippi state courts" }, { "docid": "23676205", "title": "", "text": "to refute them—that it is only after Defendants provide evidence refuting Plaintiffs’ allegations that Plaintiffs must provide evidence. Our opinions have described the fraudulent joinder standard in various ways. Recent opinions, however, have clarified that standard. “Any argument that a gap exists between the ‘no possibility’ and ‘reasonable basis’ of recovery language was recently narrowed, if not closed”. Travis, 326 F.3d at 648. The court must determine whether there is arguably a reasonable basis for predicting that state law might impose liability. Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir.2002). This means that there must be a reasonable possibility of recovery, not merely a theoretical one. Id.; Badon v. RJR Nabisco, Inc., 236 F.3d 282, 286 n. 4 (5th Cir.2000) (rejecting contention that theoretical possibility of recovery is enough to support no fraudulent joinder, citing “reasonable basis” standard); Griggs, 181 F.3d at 701 (“While the burden of demonstrating fraudulent joinder is a heavy one, we have never held that a particular plaintiff might possibly establish liability by the mere hypothetical possibility that such an action could exist”.). Nonetheless, the burden of persuasion on those claiming fraudulent joinder remains a heavy one. Travis, 326 F.3d at 648. Along these lines, our court has recognized the similarity between standards for Federal Rule of Civil Procedure 12(b)(6) (failure to state claim) and fraudulent joinder. Id. See Great Plains Trust, 313 F.3d at 312. The scope of the inquiry for fraudulent joinder, however, is broader than that for Rule 12(b)(6). For fraudulent joinder vel non, it is well established that the district court may “pierce the pleadings” and consider summary judgment-type evidence. Travis, 326 F.3d at 648-49 (citing Garriere v. Sears, Roebuck and Co., 893 F.2d 98, 100 (5th Cir.), cert. denied, 498 U.S. 817, 111 S.Ct. 60, 112 L.Ed.2d 35 (1990)). In conducting this inquiry, the district court “must also take into account all unchallenged factual allegations, including those alleged in the complaint, in the light most favorable to the plaintiff’. Travis, 326 F.3d at 649. In addition, the court must resolve all ambiguities" }, { "docid": "22136670", "title": "", "text": "in original). Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co. confirmed this point: [T]he court determines whether that party has any possibility of recovery against the party whose joinder is questioned. If there is arguably a reasonable basis for predicting that the state law might impose liability on the facts involved, then there is no fraudulent joinder. This possibility, however, must be reasonable, not merely theoretical. 313 F.3d 305, 312 (5th Cir.2002)(emphasis added; internal citation and quotations omitted; citing Badon). Our cases have also noted the similarity of the test for fraudulent joinder and the test for a Rule 12(b)(6) motion alleging failure to state a claim. For instance, Great Plains Trust states that the Rule 12(b)(6) standard is: “[T]he court should not dismiss the claim unless the plaintiff would not be entitled to relief under any set of facts or any possible theory that he could prove consistent with the allegations in the complaint”. Id. at 313 (emphasis added; citing Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.1999)). It states the fraudulent joinder standard as: “After all disputed questions of fact and all ambiguities in the controlling state law are resolved in favor of the nonremoving party, the court determines whether that party has any possibility of recovery against the party whose joinder is questioned.” Id. at 312. (emphasis added; citing Carriere v. Sears, Roebuck & Co., 893 F.2d 98, 100 (5th Cir.1990)). The above-stated fraudulent joinder standard is, of course, consistent with our precedent: whether there is a “possibility that [plaintiff] has set forth a valid cause of action.” Green, 707 F.2d at 205; Burden, 60 F.3d at 217. This language appears adopted from the Rule 12(b)(6) standard under which “the central issue is whether, in the light most favorable to the plaintiff, the complaint states a valid claim for relief’. Great Plains Trust, 313 F.3d at 312 (emphasis added; citing Hughes v. Tobacco Inst., Inc., 278 F.3d 417, 420 (5th Cir.2001)). See also Keating v. Shell Chemical Co., 610 F.2d 328 (5th Cir.1980). Of course, although the fraudulent joinder and Rule 12(b)(6) standards" }, { "docid": "22069850", "title": "", "text": "1305-06 (quoting 49 U.S.C. § 20101). According to Powers, FRSA does not substantially subsume the subject matter of timely installation. Id. Smallwood thus cites persuasive legal authority, in an area of law that this Circuit has not yet decided, to support her argument that federal preemption does not apply. In the context of fraudulent joinder, this Court has not opined how courts should construe a federal affirmative defense to a state-law claim where the federal law is not clearly defined. This Court has, however, addressed the standard for construing unclear state law. Beginning with Bobby Jones Garden Apartments, Inc. v. Suleski, 391 F.2d 172, 176 (5th Cir.1968), this Court stated the standard as follows: [T]he question is whether there is arguably a reasonable basis for predicting that the state law might impose liability on the facts involved. If that possibility exists, a good faith assertion of such an expectancy in a state court is not a sham, is not colorable and is not fraudulent in fact or in law. Recently, in Travis v. Irby, this Court thoroughly discussed the issue and concluded that a defendant must demonstrate the absence of a “reasonable basis for predicting that the state law might impose liability on the facts involved.... ” 326 F.3d 644, 647-48 (5th Cir.2003) (quoting Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir.2002)); accord Griggs v. State Farm Lloyds, 181 F.3d 694, 699 (5th Cir.1999) (“[W]e must determine whether there is any reasonable basis for predicting that [the plaintiff] might be able to establish [the defendant’s] liability on the pleaded claims in state court.”). The principle underlying this Court’s construction of uncertain state law is, in the words of the majority, to discover “whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant....” Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573, Maj. Op. at 573 (5th Cir.2004). This principle — that a defendant must demonstrate that there is no possibility of recovery by the plaintiff — suggests that courts should construe" }, { "docid": "23676204", "title": "", "text": "815 (5th Cir.), cert. denied, 510 U.S. 868, 114 S.Ct. 192, 126 L.Ed.2d 150 (1993)); Ross, slip op. at 8 (same). Later, however, the district court stated: “The issue before the Court is whether there is a 'possibility that liability could be imposed on the non-diverse Defendants/agents based on the facts of the case”. Howard, 195 F.Supp.2d at 819 (emphasis added); Ross, slip op. at 9 (same). The court concluded: because Plaintiffs could not prevail on any of their claims against Individual Defendants, they were fraudulently joined. Howard, 195 F.Supp.2d at 826-27; Ross, slip op. at 35. Plaintiffs assert that the “reasonable basis” standard is not correct; that, instead, the standard is whether “there is no possibility that plaintiff [could] establish a cause of action”. Burchett v. Cargill, Inc., 48 F.3d 173, 176 (5th Cir.1995). Plaintiffs also claim the district court shifted the burden of proof and did not construe all factual disputes in their favor. They contend Defendants only refuted their allegations with allegations, and as such, Plaintiffs were not required to provide evidence to refute them—that it is only after Defendants provide evidence refuting Plaintiffs’ allegations that Plaintiffs must provide evidence. Our opinions have described the fraudulent joinder standard in various ways. Recent opinions, however, have clarified that standard. “Any argument that a gap exists between the ‘no possibility’ and ‘reasonable basis’ of recovery language was recently narrowed, if not closed”. Travis, 326 F.3d at 648. The court must determine whether there is arguably a reasonable basis for predicting that state law might impose liability. Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir.2002). This means that there must be a reasonable possibility of recovery, not merely a theoretical one. Id.; Badon v. RJR Nabisco, Inc., 236 F.3d 282, 286 n. 4 (5th Cir.2000) (rejecting contention that theoretical possibility of recovery is enough to support no fraudulent joinder, citing “reasonable basis” standard); Griggs, 181 F.3d at 701 (“While the burden of demonstrating fraudulent joinder is a heavy one, we have never held that a particular plaintiff might possibly establish liability" }, { "docid": "11065836", "title": "", "text": "defendant in state court.’ ” Rodriguez v. Sabatino, 120 F.3d 589, 591 (5th Cir.1997) (quoting Burden v. General Dynamics Corp., 60 F.3d 213, 217 (5th Cir.1995) and Cavallini v. State Farm Mut. Auto Ins., 44 F.3d 256, 259 (5th Cir.1995)) (citations omitted). “After all disputed questions of fact and all ambiguities in the controlling state law are resolved in favor of the non-removing party, the court determines whether that party has any possibility of recovery against the party whose joinder is questioned.” Garriere v. Sears, Roebuck & Co., 893 F.2d 98, 100 (5th Cir.1990). However, the courts have more recently emphasized that the possibility of recovery must be reasonable, not merely hypothetical or speculative. “If there is ‘arguably a reasonable basis for predicting that the state law might impose liability on the facts involved,’ then there is no fraudulent joinder.” Badon v. RJR Nabisco Inc., 236 F.3d 282, 286 (5th Cir.2000) (quoting Jer-nigan v. Ashland Oil Inc., 989 F.2d 812, 816 (5th Cir.1993)). This possibility must be reasonable, not merely theoretical. See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir.2002). Before refusing to remand a case, a district court must find that there is no reasonable possibility that state law would allow recovery against a nondiverse defendant, based on the facts alleged. The question is not whether plaintiffs will probably prevail in state court, but whether there is a reasonable possibility that the state court could find that plaintiffs stated at least one valid cause of action against the nondiverse defendant. See Rodriguez, 120 F.3d at 591. To decide whether a defendant has been fraudulently joined, the district court can employ a summary judgment-like procedure that allows it to pierce the pleadings and examine other evidence for evidence of the possibility that the plaintiff can state a claim under state law against a nondiverse defendant. See B., Inc., 663 F.2d at 549 n. 9. In this case, plaintiffs have submitted Zermeno’s affidavit; affidavits of Mexican law experts; and various documents regarding the history and ownership of the aircraft. Defendants have submitted" }, { "docid": "4870679", "title": "", "text": "recognized the inconsistencies in the standard for fraudulent joinder and directly addressed the problem in Travis v. Irby, 326 F.3d 644 (5th Cir.2003): Neither our circuit nor other circuits have been clear in describing the fraudulent joinder standard. The test has been stated by this court in various terms, even within the same opinion. For example, the Griggs [v. State Farm Lloyds, 181 F.3d 694 (5th Cir.1999)] opinion states, “To establish that a non-diverse defendant has been fraudulently joined to defeat diversity, the removing party must prove ... that there is absolutely no possibility that the plaintiff will be able to establish a cause of action against the non-diverse defendant in state court.” 181 F.3d at 699 [citations omitted]. The Griggs opinion later restates that test as follows — “Stated differently, we must determine whether there is any reasonable basis for predicting that [the plaintiff] might be able to establish [the non-diverse defendant’s] liability on the pleaded claims in state court.” 181 F.3d at 699 [citations omitted]. Similarly, in summing up federal law, Moore’s Federal Practice states at one point: “To establish fraudulent joinder, a party must demonstrate ... the absence of any possibility that the opposing party has stated a claim under state law.” 16 Moore’s Federal Practice § 107.14[2][c][iv][A] (emphasis added). It then comments: “The ultimate question is whether there is arguably a reasonable basis for predicting that state law might impose liability on the facts involved.” Id. (emphasis added). Although these tests appear dissimilar, “absolutely no possibility” vs. “reasonable basis,” we must assume that they are meant to be equivalent because each is presented as a restatement of the other. Travis v. Irby, 326 F.3d at 647 (emphasis in original). The Fifth Circuit has settled upon the phrasing that: the test for fraudulent joinder is whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant, which stated differently means that there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an instate defendant. Smallwood v. Ill. Cent. R.R." }, { "docid": "22891204", "title": "", "text": "v. S.E.T. Landscape Design, Inc., 34 F.Supp.2d 188, 193 (S.D.N.Y.1999); Thigpen v. Cheminova, 992 F.Supp. 864, 869 (S.D.Miss.1997); Murray v. Commonwealth Edison, 905 F.Supp. 512, 514 (N.D.Ill.1995); Rodriguez, 818 F.Supp. at 1016-18. Additionally, the only circuit court to squarely address the issue also determined that FIFRA does not completely preempt state law. See Hurt v. Dow Chemical Co., 963 F.2d 1142 (8th Cir.1992). Since there is no federal question jurisdiction in the instant case, the district court’s ability to hear the case should have turned exclusively upon the existence of diversity jurisdiction. In turn, the existence of diversity jurisdiction rests upon a finding that joinder of Makamson was fraudulent. C. Absence of Diversity Jurisdiction The second possible basis for federal subject matter jurisdiction is diversity of citizenship. Plaintiffs in this case are Mississippi citizens whereas all of the corporate defendants are non-residents. It is the presence of diversity-destroying instate defendant Makamson that, if properly included in the action, prevents federal jurisdiction. The district court concluded that Makamson had been fraudulently joined as a defendant in order to defeat diversity jurisdiction. Plaintiffs contend that the district court erred in this finding. “The burden of persuasion placed upon those who cry ‘fraudulent joinder’ is indeed a heavy one.” B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir.1981). In Dodson v. Spiliada Maritime Corp., 951 F.2d 40 (5th Cir.1992), the standard for evaluating such a claim were summarized as follows: Where charges of fraudulent joinder are used to establish [federal] jurisdiction, the removing party has the burden of proving the claimed fraud.... To prove their allegation of fraudulent join-der [removing parties] must demonstrate that there is no possibility that [plaintiff] would be able to establish a cause of action against them in state court. In evaluating fraudulent joinder claims, we must initially resolve all disputed questions of fact and all ambiguities in the controlling state law in favor of the non-removing party. We are then to determine whether that party has any possibility of recovery against the party whose joinder is questioned. Dodson, 951 F.2d at 42 (citations omitted) (emphasis" }, { "docid": "2824527", "title": "", "text": "at 913. The Fifth Circuit recognized the inconsistencies in various articulations of the standard for fraudulent joinder and directly addressed the problem in Travis v. Irby, 326 F.3d 644 (5th Cir.2003): Neither our circuit nor other circuits have been clear in describing the fraudulent joinder standard. The test has been stated by this court in various terms, even within the same opinion. For example, the Griggs [v. State Farm Lloyds, 181 F.3d 694 (5th Cir.1999),] opinion states, To establish that a non-diverse defendant has been fraudulently joined to defeat diversity, the removing party must prove ... that there is absolutely no possibility that the plaintiff will be able to establish a cause of action against the non-diverse defendant in state court. 181 F.3d at 699 (emphasis added) (citing Burden v. Gen. Dynamics Corp., 60 F.3d 213, 217 (5th Cir.1995)); The Griggs opinion later restates that test as follows — “Stated differently, we must determine whether there is any reasonable basis for predicting that [the plaintiff] might be able to establish [the non-diverse defendant’s] liability on the pleaded claims in state court.” 181 F.3d at 699 (emphasis added). Similarly, in summing up federal law, Moore’s Federal Practice states at one point; “To establish fraudulent joinder, a party must demonstrate ... the absence of any possibility that the opposing party has stated a claim under state law.” 16 Moore’s Federal Practice § 107.14[2][c][iv][A] (emphasis added). It then comments: “The ultimate question is whether there is arguably a reasonable basis for predicting that state law might impose liability on the facts involved.” Although these tests appear dissimilar, “absolutely no possibility” vs. “reasonable basis,” we must assume that they are meant to be equivalent because each is presented as a restatement of the other. 326 F.3d at 647 (emphases in original). The Fifth Circuit has settled upon this phrasing: [T]he test for fraudulent joinder is whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant, which stated differently means that there is no reasonable basis for the district court to predict that the plaintiff might" }, { "docid": "14061962", "title": "", "text": "joined for the purpose of defeating removal jurisdiction and that remand would therefore be inappropriate. The removing party, which is urging jurisdiction on the court, bears the burden of demonstrating that jurisdiction is proper due to fraudulent joinder. Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir.1992). The Fifth Circuit has stated: The burden of persuasion placed upon those who cry “fraudulent joinder” is indeed a heavy one. In order to establish that an in-state defendant has been fraudulently joined, the removing party must show either that there is no possibility that the plaintiff would be able to establish a cause of action against the instate defendant in state court; or that there has been outright fraud in the plaintiffs pleadings of jurisdictional facts. B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir.1981). In evaluating a motion to remand, the court considers summary judgment-type evidence to pierce the pleadings. This evidence may include the pleadings, affidavits and deposition transcripts. Hart v. Bayer Corp., 199 F.3d 239, 246-47 (5th Cir.2000). The Fifth Circuit has recently reaffirmed that it “is insufficient that there be a mere theoretical possibility of recovery,” to the contrary, there must “at least be arguably a reasonable basis for predicting that state law would allow recovery in order to preclude a finding of fraudulent joinder.” Travis v. Irby, 326 F.3d 644, 648 (5th Cir.2003)(citing Badon v. RJR Nabisco Inc., 224 F.3d 382, 386 (5th Cir.2000)). In contending that no reasonable possibility of recovery exists against the local retailers, defendants argue that plaintiffs’ complaint contains only vague and conelu-sory allegations against these retailers and that the complaint did not give these defendants sufficient notice of the claims against them. Defendants’ use of alleged pleading defects as a basis for a finding of fraudulent joinder is problematic. The Mississippi and Federal Rules of Civil Procedure require only that a complaint make “a short and plain statement of the claim showing that the pleader is entitled to relief,” see Miss. R. Civ. P. 8(a)(2); Fed. R.Civ.P. 8(a)(2), and any suggestion that plaintiffs were required to set" }, { "docid": "15193366", "title": "", "text": "prove: “(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court.” Travis v. Irby, 326 F.3d 644, 647 (5th Cir.2003) (citing Griggs v. State Farm Lloyds, 181 F.3d 694, 698 (5th Cir.1999). When considering whether a non-diverse defendant has been fraudulently joined to defeat diversity of citizenship jurisdiction, courts should “pierce the pleadings” and consider “summary judgment-type evidence such as affidavits and deposition testimony.” Cavallini v. State Farm Mutual Auto Ins. Co., 44 F.3d 256, 263 (5th Cir.1995). Under this standard, plaintiffs “may not rest upon the mere allegations or denials of [their] pleadings.” Beck v. Texas State Bd. of Dental Examiners, 204 F.3d 629, 633 (5th Cir.2000). In Travis, the United States Court of Appeals for the Fifth Circuit reiterated the standard by which a plaintiffs claims must be analyzed to determine the fraudulent joinder question. The Travis court held: [T]he court determines whether that party has any possibility of recovery against the party whose joinder is questioned. If there is arguably a reasonable basis for predicting that the state law might impose liability on the facts involved, then there is no fraudulent joinder. This possibility, however, must be reasonable, not merely theoretical. Travis, 326 F.3d at 648 (emphasis in original) (citing Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir.2002). Further, concluso-ry or generic allegations of wrongdoing on the part of the non-diverse defendant are not sufficient to show that the defendant was not fraudulently joined. Badon v. RJR Nabisco, Inc., 224 F.3d 382, 392-93 (5th Cir.2000). Therefore, removal is not precluded merely because the state court complaint, on its face, sets forth a state law claim against a non-diverse defendant. Badon, 224 F.3d at 390. Removal is proper “if the plaintiffs pleading is pierced and it is shown that as a matter of law there is no reasonable basis for predicting that the plaintiff might establish liability on that claim against the in-state defendant.” Id. When conducting a fraudulent joinder analysis," }, { "docid": "23676203", "title": "", "text": "showing: (1) actual fraud in pleading jurisdictional facts; or (2) inability of the defendant to establish a cause of action against the non-diverse plaintiff. Travis v. Irby, 326 F.3d 644, 647 (5th Cir.2003) (citing Griggs v. State Farm Lloyds, 181 F.3d 694, 699 (5th Cir.1999)). At issue is the standard to be applied for the second of the two means for showing fraudulent join-der. The district court noted that the removing party has the burden of showing fraudulent joinder, but that Plaintiffs could not rest upon mere allegations in their pleadings. Rather, the court could pierce the pleadings. It concluded: “In the event the court, after resolving all disputed questions of fact and ambiguities of law in favor of the non-removing party, finds that there is ‘arguably a reasonable basis for predicting that the state law might impose liability on the facts involved, then there is no fraudulent joinder’ and hence no basis for asserting diversity of citizenship jurisdiction”. Howard, 195 F.Supp.2d at 818 (emphasis added) (citing Jemigan v. Ashland Oil, Inc., 989 F.2d 812, 815 (5th Cir.), cert. denied, 510 U.S. 868, 114 S.Ct. 192, 126 L.Ed.2d 150 (1993)); Ross, slip op. at 8 (same). Later, however, the district court stated: “The issue before the Court is whether there is a 'possibility that liability could be imposed on the non-diverse Defendants/agents based on the facts of the case”. Howard, 195 F.Supp.2d at 819 (emphasis added); Ross, slip op. at 9 (same). The court concluded: because Plaintiffs could not prevail on any of their claims against Individual Defendants, they were fraudulently joined. Howard, 195 F.Supp.2d at 826-27; Ross, slip op. at 35. Plaintiffs assert that the “reasonable basis” standard is not correct; that, instead, the standard is whether “there is no possibility that plaintiff [could] establish a cause of action”. Burchett v. Cargill, Inc., 48 F.3d 173, 176 (5th Cir.1995). Plaintiffs also claim the district court shifted the burden of proof and did not construe all factual disputes in their favor. They contend Defendants only refuted their allegations with allegations, and as such, Plaintiffs were not required to provide evidence" } ]

[ { "docid": "13934391", "title": "", "text": "Rule 52(a) which provides that harmless error shall be disregarded. Estes v. United States, supra, 335 F.2d at 618. It is also settled that “[t]he presence of a defendant must bear a reasonably substantial relationship to the opportunity to defend. The Constitution does not assure ‘the privilege of presence when presence would be useless, or the benefit but a shadow.’ Snyder v. Com. of Massachusetts, 291 U.S. 97, 106 [54 S.Ct. 330, 78 L.Ed. 674] (1934) . . . .” Stein v. Massachusetts, 313 F.2d 518, 522 (9th Cir. 1962). Thus, if no prejudice to a defendant’s substantial rights resulted from his absence at a stage of the proceedings, the courts will not overturn his conviction. Rule 52(a), Fed.R.Crim. P.; Estes v. United States, supra; Taylor v. United States, 385 F.2d 835, 836 (8th Cir. 1967), cert. denied, 393 U.S. 879, 89 S.Ct. 181, 21 L.Ed.2d 153 (1968); Cox v. United States, 309 F.2d 614, 616-618 (8th Cir. 1962); Glouser v. United States, 296 F.2d 853, 855-856 (8th Cir. 1961), cert. denied, 369 U.S. 825, 82 S.Ct. 840, 7 L.Ed.2d 789 (1962). The record discloses that immediately before the trial commenced Judge Oliver requested the attorneys to confer with him in chambers. No objection was made by appellant’s counsel to the absence of appellant. The proceedings were recorded and have been carefully examined. It is clear that the conference was designed entirely to arrange for an orderly trial. Judge Oliver first confirmed that counsel for the Government and appellant had received a copy of the court’s order granting appellant’s motion to suppress. Suggestions were invited and received with respect to voir dire examination of the jury panel. The court and counsel then agreed on appropriate procedures for handling 18 U.S.C. § 3500 statements. The stipulation regarding appellant’s handwriting on the money orders was discussed. During the course of the conference the court made it abundantly clear that unless there was agreement on all matters discussed he would conduct a hearing outside the presence of the jury and in the presence of the defendant. No objections were offered. Additionally, Judge Oliver" } ]

[ { "docid": "2905323", "title": "", "text": "to disclose the appellant’s absence at these times, and we will not infer such absence lacking positive proof to the contrary. Another occasion was a bench conference between the court and a juror at which time the juror disclosed he perhaps knew one of the government’s prospective witnesses. This conference was held out of the presence of the defendants and defense counsel. In subsequent discussions immediately afterward, however, the entire conversation was read by the reporter. There is no indication that appellant was not present at this time. This Court has previously dealt with the rights of a defendant during exchanges between the trial judge and jurors. In Jones v. United States, 299 F.2d 661 (10th Cir. 1962), cert. denied 371 U. S. 864, 83 S.Ct. 123, 9 L.Ed.2d 101, reh. denied 371 U.S. 931, 83 S.Ct. 294, 9 L.Ed. 2d 239 we stated at 662 that “we can let stand no conviction where the defendant was not present at all stages of the proceedings unless the record completely negatives any reasonable possibility of prejudice arising from such error.” In that case, the trial judge had answered an inquiry of a juror out of the presence of the defendant. We concluded the inquiry related to a question of law, not fact, and was adequately covered by previously given instructions. We further concluded the appellant’s presence would not have aided his defense, and that he suffered no prejudice. In Baeino v. United States, 316 F.2d 11 (10th Cir. 1963), cert. denied 375 U.S. 831, 84 S.Ct. 76, 11 L.Ed.2d 62, we held it unnecessary to determine whether the trial court’s private admonition to a juror was a part of the trial, thus requiring the appellant’s presence, in view of a showing on the record that no prejudice or harm could have resulted. We can perceive no error in the private conversation between the juror and the trial judge. Any inherent prejudice was obviated by the court reporter’s reading of the entire conversation to counsel and defendants. Ample opportunity was afforded for anyone who felt prejudiced thereby to object. There was evidently" }, { "docid": "22306048", "title": "", "text": "corroborate the defendant’s deposition testimony to the effect that Hintz had expressed an interest in acquiring the engine. I. AUTHORITY OF THE SPECIAL ATTORNEYS TO PRESENT THE CASE TO THE GRAND AND PET-IT JURIES. There is no merit to the defendant’s contention, raised for the first time more than six months after conviction, that the prosecuting attorneys were without authority to present the case to the grand and petit juries. Any objec tions to the validity of the indictment were waived when they were not presented by motion before trial. See Federal Rule of Criminal Procedure 12(b)(2); Davis v. United States, 411 U.S. 233, 236-237, 241, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973). Even were we to relieve the • defendant from the consequences of his waiver, we have squarely rejected the proposition that the type of authorizing letter employed here is insufficient to empower special attorneys of the Justice Department to conduct grand jury proceedings. United States v. Wrigley, 520 F.2d 362 (8th Cir. 1975); United States v. Agrusa, 520 F.2d 370 (8th Cir. 1975); Di Girlomo v. United States, 520 F.2d 372 (8th Cir. 1975). Accord, In re Grand Jury Subpoena of Persico, 522 F.2d 41 (2nd Cir. 1975). II. PUBLICITY. The defendant argues that he was deprived of a fair trial because of publicity occurring both before and during the trial. While he has submitted a package of newspaper articles to this Court, he does not specify the manner in which they prejudiced him. On this appeal, he points to no instance in which the news accounts were anything other than factual, and he cites no instances in which the accounts went beyond the evidence presented to the jury. Compare United States v. Pomponio, 517 F.2d 460 (4th Cir. 1975) (defendant demonstrated that specific newspaper articles contained in-court items from which the jury had been excluded). The defendant did not request a sequestered jury. He does not contend that the voir dire was in any respect inadequate, that any particular juror should „ have been stricken, or that any juror violated the court’s repeated admonitions to avoid" }, { "docid": "16947185", "title": "", "text": "of other crimes committed by the defendant may be admitted if: (1) it is relevant to a material issue (in this case, intent to distribute); (2) it is similar in kind and reasonably close in time to the crime charged; (3) the other crimes are proved by a preponderance of the evidence; and (4) the probative value outweighs the prejudicial effect of the evidence. United States v. Longbehn, 898 F.2d 635, 639 (8th Cir.), cert. denied, 495 U.S. 952, 110 S.Ct. 2217, 109 L.Ed.2d 542 (1990). The trial court has broad discretion in making Rule 404(b) rulings and we may overturn its rulings only if the record shows that the evidence clearly had no bearing on the issues at trial. Id. Though we may perhaps have resolved the evidentiary questions differently were they before us in the first instance, we cannot say as a matter of law that evidence of contemporaneous marijuana dealing has “no bearing” on whether the defendant intended to distribute other drugs in his possession. See United States v. Haynes, 881 F.2d 586, 590 (8th Cir.1989) (past operation of marijuana business relevant to intent to distribute cocaine). We cannot reverse on this ground. Finally, Kills Enemy complains that the district court erred in permitting Amos American Horse to testify. American Horse had been a venireman, but was excused for cause when he stated that Kills Enemy was his friend and former neighbor. The government then contacted American Horse and called him as a witness. Kills Enemy contends that it was error to permit American Horse to testify because he had served on the venire with persons who became the jurors in this case, and he may have become acquainted with them or otherwise made an impression, either favorable or unfavorable, on the jurors. Kills Enemy cites Fed.R.Evid. 606, which bars jurors from testifying. Rule 606 is not applicable to veniremen, as opposed to jurors, and does not require us to reverse. Nevertheless, we must express our concern about the government’s actions in calling American Horse to the stand. Though we have nothing but speculation in this case" }, { "docid": "16451692", "title": "", "text": "first day’s proceedings the court invited the attorneys to “speak to any of these points.” Counsel for the defendant did not speak. There is no indication in the record that any juror violated the court’s instructions. In Rizzo v. United States, 304 F.2d 810, 815 (8th Cir.), cert. denied sub nom., Ñafie v. United States, 371 U.S. 890, 83 S.Ct. 188, 9 L.Ed.2d 123 (1962), the court cited many holdings to the effect that “[w]here a jury has been clearly admonished not to read newspaper accounts of the trial in which they are serving as jurors, it is not to be presumed that they violated that admonition.” See also Estes v. United States, 335 F.2d 609, 615 (5th Cir. 1964), cert. denied, 379 U.S. 964, 85 S.Ct. 656, 13 L.Ed.2d 559 (1965). Since the defendant did not seek to question the jurors during the trial while the allegedly prejudicial publicity was currently appearing, there was no abuse of discretion in denying the request to question them after the trial was over, in the absence of some showing of violation of the court’s clear instruction. See United States v. Brumbaugh, 471 F.2d 1128, 1130-31 (6th Cir.) (McCree, J., concurring), cert. denied, 412 U.S. 918, 93 S.Ct. 2732, 37 L.Ed.2d 144 (1973). There was a great deal of publicity concerning the defendant both before and during the trial. The District Judge took pains to see that the jury considered only the evidence presented in court in deciding the case. Defense counsel were not restricted in their attempts- to determine whether any prospective jurors had been influenced by pre-trial publicity. When publicity during the trial was brought to the district court’s attention the defendant made no attempt to establish contamination of the jury. Widespread publicity about a defendant is not enough, standing alone, to require reversal of a conviction. This is particularly true when the publicity is largely unrelated to the trial which is imminent or in progress. There was no showing of actual taint in this case and none will be presumed. The fact that the defendant was subjected to considerable notoriety," }, { "docid": "2349681", "title": "", "text": "with intent to distribute that substance.” The jury was also properly instructed on the definitions of “conspiracy,” “possess,” and “distribute.” As we have said, in evaluating jury instructions we look to whether, when taken as a whole, they fairly and adequately submitted the issue to the jury hearing the case. See United States v. Beckman, 222 F.3d 512, 520 (8th Cir.2000). We believe, without reservation, that the jurors here understood that in order to convict Mr. Pinque they had to determine that he was part of a conspiracy both to possess and to distribute crack. III. Mr. Pinque’s final challenge to the jury instructions is that the trial court failed to state that in order to convict him of conspiracy, the jury had to find that he conspired with at least one person who was not a government agent. “It is of course a well-established rule that ‘there can be no indictable conspiracy involving only the defendant and government agents and informers,’ ” United States v. Rios, 171 F.3d 565, 566 (8th Cir.1999), quoting United States v. Nelson, 165 F.3d 1180, 1184 (8th Cir.1999). Mr. Pinque, however, never argued at trial that government agents were his only co-conspirators. Nor did he request such an instruction or object to the absence of such an instruction. We therefore review the omission of the instruction for plain error. See United States v. Jorgensen, 144 F.3d 550, 560 (8th Cir.1998). “There is plain error if the omitted instructions should have been given and the error affected the defendant’s ‘substantial rights,’ ” id., quoting Olano, 507 U.S. at 736, 113 S.Ct. 1770. Mr. Pinque’s substantial rights were not affected by the absence of this instruction, because the jury heard a great deal of evidence tending to show that Mr. Pinque conspired with at least one person who was not a government agent during each conspiracy for which he was convicted. With respect to the first conspiracy, an informant testified that, at Mr. Pinque’s request, he received crack from a girlfriend of Mr. Pinque’s while Mr. Pinque was present. The informant further testified that this girlfriend" }, { "docid": "22592495", "title": "", "text": "the presence of the defendant’s counsel. In finding no error, the court declared: “If, as it appears, this was an ex parte interview [by the trial judge], without the presence of defense counsel, the latter knew of the incident and raised no objections at any time. As we said of a similar situation in United States v. Larkin, 417 F.2d 617, 619 (1969), this is ‘at best harmless error’.” (513 F.2d at 710, n.1) In United States v. Jorgenson (10th Cir. 1972), 451 F.2d 516, cert. denied, 405 U.S. 922, 92 S.Ct. 959, 30 L.Ed.2d 793 (1972), a bench conference between the trial judge and one of the jurors occurred. This conference was “held out of the presence of the defendants and defense counsel. In subsequent discussions immediately afterward, however, the entire conversation was read by the reporter.” Later, the defendants appealed because of this conference between the trial judge and juror. In denying relief, the court said: “Any inherent prejudice was obviated by the court reporter’s reading of the entire conversation to counsel and defendants. Ample opportunity was afforded for anyone who felt prejudiced thereby to object.” (451 F.2d at 521) There is no showing of prejudice in this case. Error, if there was, in the in camera examination would be “harmless error” under United States v. Doe, supra. This, of course, does not mean that we approve of in camera hearings of this character conducted without the presence of counsel: To the contrary, we are of the opinion that, absent consent of all counsel, in camera examinations of jurors should not be conducted by a trial judge without the presence of counsel. What we are holding in this case is that the procedure followed by the trial judge was acquiesced in and such acquiescence resulted in a waiver of any claim of error, in the absence of prejudice. Miscellaneous The defendants raise a number of other points in their appeal. None has merit and all may be quickly disposed of. The brief references during the cross-examination of the defendant John Edward Jones to his earlier federal narcotics conviction," }, { "docid": "22990015", "title": "", "text": "virtually unanimous that in order for a jury separation to constitute reversible error, the defendant must show that he suffered actual prejudice because of the separation. E. g., United States v. Carter, 602 F.2d 799, 805-06 (7th Cir. 1979); United States v. Almonte, 594 F.2d 261, 267 (1st Cir. 1979); Blackmon v. United States, 474 F.2d 1125, 1126 (6th Cir.), cert. denied, 414 U.S. 912, 94 S.Ct. 252, 38 L.Ed.2d 150 (1973); United States v. Harris, 458 F.2d 670, 674-75 (5th Cir.), cert. denied, 409 U.S. 888, 93 S.Ct. 195, 34 L.Ed.2d 145 (1972); Cardarella v. United States, 375 F.2d 222, 227-28 (8th Cir. 1967); see, e. g., United States v. Siragusa, 450 F.2d 592, 595 (2d Cir. 1971); United States v. Weiss, 431 F.2d 1402, 1407 (10th Cir. 1970); Sullivan v. United States, 414 F.2d 714, 716 (9th Cir. 1969). The record does not disclose the existence of any actual prejudice. The district judge repeatedly admonished the jurors not to discuss the case with anyone, or even to allow anyone to approach and address them concerning it. He further instructed them not to form or express any opinion about the case until it was formally submitted to them following closing arguments. The jurors had ample opportunity to refresh their memories with respect to the evidence by listening to tapes of testimony given during the trial and re-examining exhibits. Some of them did so. Finally, the judge made sure that the juror who had taken ill was fully recovered before he permitted deliberations to continue, so that there would be no temptation to cut short deliberations out of concern for this juror’s health. In view of these precautions and the complete absence of any showing of actual prejudice, Oliverez’ hypothetical speculations of prejudice do not persuade us that reversal is required here. The district court’s denial of Oliverez’ motion for mistrial is affirmed. VI Both Diggs and Oliverez argue that the trial judge erred in refusing to give the jury an instruction on their entrapment defense. Whether there exist issues of fact as to a defense of entrapment is properly" }, { "docid": "14024612", "title": "", "text": "PER CURIAM: Busard and Meyer, defendants-appellants, were convicted of knowingly and willfully possessing with intent to distribute a controlled substance, cocaine, in violation of 21 U.S.C. § 841(a)(1). The contention on appeal that the indictment is duplicitous is without merit. The indictment, in pertinent part, reads as follows: Busard and Meyer, aided and abetted by each other, knowingly and intentionally did possess with intent to distribute a controlled substance The indictment did not charge the defendants with “aiding and abetting”; this language is merely a specification of the manner in which the defendants were guilty of the substantive offense of unlawful possession. As such, the use of this language is permitted by F.R. Crim.P. 7(c)(1). United States v. Bullock, 5 Cir. 1971, 451 F.2d 884, 888; United States v. Duke, 4 Cir. 1969, 409 F.2d 669, 671. Moreover, an objection of this nature, which was not made before the trial, is waived. F.R.Crim.P. 12(b)(2); United States v. Williams, 5 Cir. 1953, 203 F.2d 572, 573, cert. denied, 346 U.S. 822, 74 S.Ct. 37, 98 L.Ed. 347. Busard contends that an agent’s inadvertent revelation to the jury, showing that Busard had previously been arrested, prejudiced their right to a fair trial. The trial court instructed the jury to disregard the statement about Busard’s arrest and polled the jury to ascertain whether any juror felt that he or she could not disregard it. Moreover, there was such an abundance of inculpatory evidence that the harmless error rule applies, F.R.Crim.P. 52(a); United States v. Ratner, 5 Cir. 1972, 464 F.2d 169. Both appellants argue that the cocaine seized by narcotics agents was improperly introduced into evidence. The Court finds, however, that there was a rational basis by which the jury could have found that the cocaine was connected to the defendants. See United States v. Montalvo, 2 Cir. 1960, 271 F.2d 922. The evidence was properly admitted. The Court has considered all the other issues the appellants raised; each lacks sufficient merit to be discussed. The judgments are affirmed. . The Court gave the following instruction: The Court: Ladies and gentlemen, the statement" }, { "docid": "4007217", "title": "", "text": "When the court charged the jury, it read 21 U.S.C. § 846 and § 841(a)(1) into the record, as well as a definition of “to distribute,” and explained the pharmacist/physician exemption from, liability and the elements of a conspiracy. Thereafter, the court dismissed the jury to deliberate, without discharging the alternate juror. Three minutes after the jury retired to commence deliberations, the judge dismissed the alternate juror. The defendant did not object to the court’s oversight, nor did he request that the judge interrogate the jurors to determine whether the alternate juror participated in or influenced any deliberations or whether deliberations had even commenced. In his first assignment of error, the defendant contended that the court committed plain error in its instruction to the jury concerning the “good faith” defense. In the instant action, the judge reviewed with the jury the provisions of 21 U.S.C. § 841(a)(1) and further instructed them that physicians and pharmacists were exempt from liability if they distributed controlled substances in the usual course of business pursuant to 21 C.F.R. § 1306.04. These instructions effectively informed the jury of the good faith defense. United States v. Carroll, 518 F.2d 187 (6th Cir. 1975) (citing White v. United States, 399 F.2d 813, 816-17 (8th Cir.1968)). Accordingly, this assignment of error is without merit. The defendant’s second assignment of error is equally without merit. He argued that the court committed plain error when it did not instruct the jury on the elements of distribution of a controlled substance pursuant to 21 U.S.C. § 841(a)(1) and the burden of proof required for each element. However, this Circuit has recently decided an identical case in which it concluded that the district court’s failure to instruct the jury on definitions of “distribution,” “possession,” and “intent” was not plain error when it gave detailed instructions on the elements of a conspiracy. United States v. Gordon, 936 F.2d 573 (6th Cir.1991). In the instant action, the district court read § 841(a)(1) to the jury and defined the term “distribute,” in addition to identifying the elements of a conspiracy. Accordingly, the district court did" }, { "docid": "9511000", "title": "", "text": "Johnson were charged in a three-count indictment. The first count charged all three defendants with conspiracy to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(l)(A)(ii) (II). The second count charged all three with possession with intent to distribute one kilo of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(l)(B)(ii)(II), and 18 U.S.C. § 2. The third count charged Ramirez with the use of a telephone to facilitate a drug offense, in violation of 21 U.S.C. §§ 843(b) and 843(c). Casas-Torres pleaded guilty to count two of the indictment in exchange for dismissal of count one. He then testified for the prosecution at Ramirez’ and Johnson’s joint trial. The jury convicted Johnson and Ramirez on both counts charged against them. The district court sentenced Johnson to 172 months’ imprisonment and Ramirez to 450 months’ imprisonment. II. DISCUSSION A. Juror Issue Ramirez and Johnson jointly appeal the district court’s refusal to dismiss for cause a juror who asserted during voir dire that he was “doubtful” that he would want someone in his frame of mind on the jury if he were a defendant charged with drug offenses. Juror Schweitzer said that he would have difficulty putting out of his mind articles about drugs he had recently read in news magazines. Upon further questioning by the court and the prosecution, though not by the defense, Schweitzer agreed to try to put what he had read out of his mind and to limit his decision on the case to the evidence he heard in the courtroom and his own common sense. We will not interfere with a district court’s broad discretion to strike jurors for cause absent a showing of actual prejudice. United States v. Huddleston, 810 F.2d 751, 753 (8th Cir.1987) (per curiam). The test of a juror’s qualifications is “whether a prospective juror ‘can lay aside his impression or opinion and render a verdict based on the evidence presented in court.’ ” Mastrian v. McManus, 554 F.2d 813, 818 (8th Cir.), cert. denied, 433 U.S. 913, 97 S.Ct. 2985, 53 L.Ed.2d 1099 (1977)" }, { "docid": "12658212", "title": "", "text": "to the defendant” because it was alleged that the jury had been “prejudiced by statements of spectators on the courthouse lawn made in the presence of the jurors during recesses of the trial” which included “opinions of the spectators as to the proper punishment of the petitioner, including opinions that the petitioner should be killed.” 313 F.2d at 930-931. Thus, our holding in Near turned on the dual circumstances of “the prisoner’s absence from the conference” which he could have understood and might have affected “combined with the allegations of serious consequences which are said to have flown from the decision.” 313 F.2d at 932. Significantly, we noted in Near that “the conference involved more than a discussion of legal principles which the defendant could not be expected to understand or to contribute anything of value.” Id. While both defendant in the instant case and the defendant in Near were absent from a conference in chambers where an important decision was reached, in Near petitioner made non-frivolous allegations of prejudice resulting from his absence and the nature of the conference was such that the defendant could be expected to understand the proceedings and perhaps affect the outcome, while in the instant case defendant has neither shown prejudice to either of the two policy interests involved in the right of presence, nor advanced a plausible argument that he would have understood the proceedings much less affected them. Thus, Near is no bar to our conclusion that the failure to include the defendant in a purely legal conference on jury instructions did not deprive him of any right vouchsafed by the fifth amendment’s due process clause. See Schwab v. Berggren, 143 U.S. 442, 449, 12 S.Ct. 525, 36 L.Ed. 218 (1892) (Harlan, J.) (quoted in n. 9 supra.); United States v. Sinclair, 438 F.2d 50, 52 (5 Cir. 1971); Pope v. United States, 287 F.Supp. 214, 219 (W.D.Texas 1967), aff’d, 398 F.2d 834 (5 Cir. 1968). See generally Snyder v. Massachusetts, 291 U.S. 97, 105-106, 113, 54 S.Ct. 330, 78 L.Ed. 674 (1934) (Cardozo, J.); Deschenes v. United States, 224 F.2d 688" }, { "docid": "2108877", "title": "", "text": "HEANEY, Circuit Judge. The defendant, Jake Frank Richardson, appeals from his conviction of possessing heroin with intent to distribute and distributing heroin, in violation of 21 U.S.C. § 841(a)(1). The defendant urges that he is entitled to a reversal of the conviction on the following grounds: (1) That 21 U.S.C. § 841(a)(1) is unconstitutional. There is no merit to this contention. See, United States v. Scales, 464 F.2d 371 (6th Cir. 1972). See also, White v. United States, 399 F.2d 813 (8th Cir. 1968). (2) That the trial court erred in: (a) neglecting to admonish the jurors at each recess with respect to their obligation not to discuss the case with others, and not to read published accounts of the trial; (b) not requiring the defendant’s presence during the conference on instructions; and (e) not requiring the defendant’s presence during the conference on the qualifications of prospective jurors and while the defendant’s trial attorney was making strikes. The defendant has not pointed to any specific instances of juror misconduct, and has not shown that he was prejudiced by his absence from the conferences. Under such circumstances, we find no merit to his contentions. Peterson v. United States, 411 F.2d 1074 (8th Cir.), cert. denied, 396 U.S. 920, 90 S.Ct. 247, 24 L.Ed.2d 199 (1969). Moreover, the record does not reflect that either the defendant or his attorney requested that the defendant be present at the conferences, nor were any objections to his absence made below. (3) That the indictment was multiplicious and prejudiced the defendant before the jury as it charged both distribution and possession with intent to distribute. There is no merit to this contention as the evidence needed to prove possession with intent to distribute is different from that required to prove actual distribution. See, United States v. Funk, 412 F.2d 452 (8th Cir. 1969); Cardarella v. United States, 375 F.2d 222 (8th Cir.), cert. denied, 389 U.S. 882, 88 S.Ct. 129, 19 L.Ed.2d 176 (1967). (4) That it was error to permit an informant to testify that the defendant had distributed heroin to the informant on occasions" }, { "docid": "16588675", "title": "", "text": "all stages of his trial, a right that is grounded in the confrontation clause of the Sixth Amendment, Blackwell v. Brewer, 562 F.2d 596, 599 (8th Cir.1977), in the due process clause of the Fifth and Fourteenth Amendments, United States v. Gunter, 631 F.2d 583, 589 (8th Cir.1980), and in Rule 43 of the Federal Rules of Criminal Procedure. The defendant bears the burden to show that he was absent during a particular stage of the trial. United States v. Leisure, 377 F.3d 910, 915 (8th Cir.2004), vacated and remanded, - U.S. -, 125 S.Ct. 1065, 160 L.Ed.2d 1050 (2005) (remanded for reconsideration of an unrelated sentencing issue in light of United States v. Booker, - U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)). Clark was absent during two meetings between the judge and trial counsel in which jury notes were read and discussed and during an in-chambers conference and brief hearing regarding a note from an individual juror. Although Clark’s brief implies that he may also have been absent when the jury reported that it had not reached a unanimous verdict and when an Allen charge was given, see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), the government counters that because Clark was present earlier the same afternoon in the courtroom and the transcript did not indicate that he had departed, he was very likely present and had at the very least failed to prove absence. Govt. Brief at 44. Rule 43 provides that the defendant’s presence is required at: (1) the initial appearance, the initial arraignment, and the plea; (2) every trial stage, including jury im-panelment and the return of the verdict; and (3) sentencing. Fed.R.Crim.P. 43(a). The defendant’s presence is not required, however, when the “proceeding involves only a conference or hearing on a question of law.” Fed.R.Crim.P. 43(b)(3). We have held that Rule 43(b)(3) does not require the defen dant’s presence at a chambers conference held to determine a jury’s request for more instructions. United States v. Parker, 836 F.2d 1080, 1084 (8th Cir.1987); see also Gunter, 631" }, { "docid": "5695076", "title": "", "text": "F.2d 694 (4th Cir. 1963); United States v. Dioguardi, 20 F.R.D. 10 (S.D.N.Y.1956) With regard to Allen’s claim, we have already noted that Haugh’s testimony did not implicate him in any way. He cannot, therefore, claim that Haugh’s testimony prejudiced him. Severance is a matter of discretion with the District Court, and its denial is not subject to reversal unless clear prejudice is shown. Caton v. United States, 407 F.2d 367 (8th Cir. 1969); Johnson v. United States, 356 F.2d 680, 682 (8th Cir.), cert. denied, 385 U.S. 857, 87 S.Ct. 105, 17 L.Ed.2d 84 (1966). The District Court did not abuse its discretion here. IV Defendant Schroeder contends that the District Court erred in instructing the jury, over his objection, that it might draw no inference from a defendant’s failure to testify. We cannot agree. We have made clear that, in a joint trial, the court must instruct the jury on a defendant’s failure to testify where such an instruction is requested by one defendant even though other defendants object. Catón y. United States, supra. Here, defendant Ewert requested that the instruction be given. Schroeder objected on the grounds that such an instruction would prejudice him. These facts are no different from those in Catón. Schroeder’s contention, therefore, must be rejected. V Schroeder contends that the verdict against him was not unanimous. This contention is without merit. Shortly after the trial, a juror signed an affidavit stating that he felt Schroeder to be not guilty and that he voted for conviction against his will. The record, however, makes clear that the same juror answered in the affirmative when polled as to his guilty verdict on Schroeder. The general rule is that jurors may not impeach their verdict. Stein v. New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953); Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114 (1912); Butler v. United States, 317 F.2d 249, 262 (8th Cir.), cert. denied, 375 U.S. 836, 84 S.Ct. 67, 11 L.Ed.2d 65 (1963). After a jury has given its verdict, has been polled in open" }, { "docid": "23273254", "title": "", "text": "308 F.2d 140 (5th Cir. 1962), petition for rehearing denied, 324 F.2d 375 (1963). We are aware that these cases also appear to hold that the inability of a defendant to comment on a co-defendant's refusal to take the stand in a joint trial is sufficient to require a severance. Subsequent cases, however, have read De Luna and Echeles narrowly, confining their application to cases in which a defendant can show “real prejudice” if he is not permitted to comment on the silence of a co-defendant. United States v. Kahn, 381 F.2d 824, 840 (7th Cir.), cert. denied, 389 U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661 (1967). See Smith v. United States, 385 F.2d 34, 37-38 (5th Cir. 1967); Kolod v. United States, 371 F.2d 983, 990-991 (10th Cir. 1967), vacated on other grounds, 390 U. S. 136, 88 S.Ct. 752, 19 L.Ed.2d 962 (1968); Hayes v. United States, 329 F.2d 209, 221-222 (8th Cir.), cert. denied sub nom. Bennett v. United States, 377 U.S. 980, 84 S.Ct. 1883, 12 L.Ed.2d 748 (1964). See also United States v. McKinney, 379 F.2d 259, 264-265 (6th Cir. 1967). No such prejudice has been shown here. 9. Other Points The remaining contentions do not require extended comment. a. Natarelli’s claim that the second count should have been dismissed because one cannot be guilty of conspiring to transport stolen goods “knowing them to have been stolen” under 18 U.S. C. § 2314 until the goods have in fact been stolen is without merit. Cf. Williamson v. United States, 207 U.S. 425, 446-447, 28 S.Ct. 163, 52 L.Ed. 278 (1908). b. Since no objection was taken below we do not consider Cino’s argument that he was deprived of his constitutional right to be present at every stage of his trial by the holding of numerous conferences in his absence in the judge’s chambers. United States v. Indiviglio, 352 F.2d 276 (2d Cir. 1965) (en banc), cert. denied, 383 U.S. 907, 86 S. Ct. 887, 15 L.Ed.2d 663 (1966). c. Caci contends that the district court erred in refusing to recall the jurors seven days" }, { "docid": "2108879", "title": "", "text": "prior to the transactions for which the defendant was tried below and, alternatively, that it was error to admit this testimony without giving an instruction limiting the use of such evidence. We disagree. This evidence was properly admissible to show that the defendant had the requisite criminal intent and guilty knowledge. See, e. g., Dranow v. United States, 307 F.2d 545, 566 (8th Cir. 1962). (5) That he was deprived of a fair trial because the prosecutor referred to, and had witness identify, his co-defendant who was present in the courtroom during the trial. There is no indication that this in any way prejudiced the defendant, and this contention is without merit. (6) That there was insufficient evidence to sustain the conviction. We find no merits to this contention. The evidence was more than sufficient to sustain a conviction. (7) That the trial court erred by permitting a federal narcotic’s agent to testify with respect to conversations between the agent and Frank Richardson, who was initially a co-defendant, because these conversations took place outside the presence of the defendant. Alternatively, he contends that it was error to admit this testimony without an instruction limiting its use by the jury. We are persuaded that the narcotics agent’s testimony was properly admissible under the long-standing rule that a statement is not hearsay if it is a statement made during the course of and in furtherance of a conspiracy by the co- conspirator of a defendant. See, e. g., United States v. Schroeder, 433 F.2d 846 (8th Cir. 1970), cert. denied, 401 U.S. 943, 91 S.Ct. 951, 28 L.Ed.2d 224 (1971) and sub nom. Allen v. United States, 400 U.S. 1024, 91 S.Ct. 590, 27 L.Ed.2d 636 (1971). See also, Federal Rules of Evidence, Rule 801(d)(2)(E). This rule has been held to apply even in the absence of a conspiracy charge so long as there is independent evidence of concert of action. See, United States v. Sanders, 463 F.2d 1086 (8th Cir. 1972); United States v. Reed, 446 F.2d 1226 (8th Cir. 1971); United States v. Williams, 435 F.2d 642 (9th Cir. 1970)," }, { "docid": "2108878", "title": "", "text": "was prejudiced by his absence from the conferences. Under such circumstances, we find no merit to his contentions. Peterson v. United States, 411 F.2d 1074 (8th Cir.), cert. denied, 396 U.S. 920, 90 S.Ct. 247, 24 L.Ed.2d 199 (1969). Moreover, the record does not reflect that either the defendant or his attorney requested that the defendant be present at the conferences, nor were any objections to his absence made below. (3) That the indictment was multiplicious and prejudiced the defendant before the jury as it charged both distribution and possession with intent to distribute. There is no merit to this contention as the evidence needed to prove possession with intent to distribute is different from that required to prove actual distribution. See, United States v. Funk, 412 F.2d 452 (8th Cir. 1969); Cardarella v. United States, 375 F.2d 222 (8th Cir.), cert. denied, 389 U.S. 882, 88 S.Ct. 129, 19 L.Ed.2d 176 (1967). (4) That it was error to permit an informant to testify that the defendant had distributed heroin to the informant on occasions prior to the transactions for which the defendant was tried below and, alternatively, that it was error to admit this testimony without giving an instruction limiting the use of such evidence. We disagree. This evidence was properly admissible to show that the defendant had the requisite criminal intent and guilty knowledge. See, e. g., Dranow v. United States, 307 F.2d 545, 566 (8th Cir. 1962). (5) That he was deprived of a fair trial because the prosecutor referred to, and had witness identify, his co-defendant who was present in the courtroom during the trial. There is no indication that this in any way prejudiced the defendant, and this contention is without merit. (6) That there was insufficient evidence to sustain the conviction. We find no merits to this contention. The evidence was more than sufficient to sustain a conviction. (7) That the trial court erred by permitting a federal narcotic’s agent to testify with respect to conversations between the agent and Frank Richardson, who was initially a co-defendant, because these conversations took place outside the" }, { "docid": "23518502", "title": "", "text": "the jury. V. Both appellants argue that there were other errors in the trial which require that their convictions be reversed. Martin argues that the court erred in denying him issuance of subpoenas for an indigent defendant, in denying his motion to dismiss the indictment or to suppress evidence based on a claimed grant of governmental immunity, and in appointing a jury foreperson, rather than allowing the jury to elect its own. Weems argues that the trial court erred in stating in a colloquy with counsel in the presence of the jury that it is everyone’s duty to report a crime, in refusing to dismiss count two of the indictment (conspiracy to distribute marijuana) for insufficient evidence, in failing to give the jury a requested instruction on-the knowledge required for participation in a conspiracy, and in appointing the jury foreperson. We have reviewed each of these alleged errors and find them to be without merit. Accordingly, we affirm the conviction of appellant Judy S. Weems. We remand the case of appellant Donald L. Martin to the District Court for the specific limited purpose of conducting an evidentiary hearing to determine what portion, if any, the jurors heard of the judge’s remarks at the side bar conference. We request the District Court to make specific findings as to precisely what words the jurors heard, and the subject to which they understood the words to refer. . Although this action was filed in the Northeastern Division of the Eastern District of Tennessee, it was tried in the Northern Division, at Knoxville. . In Cooper the jury was sworn, apparently due to an oversight, only after opening statements by both parties had been made. The oath was sworn before any evidence had been presented, however, and the jury was cautioned not to consider the opening statements as evidence. The court found \"no evidence that the delay in swearing the jury prejudiced petitioner’s right to a jury trial, fair trial or due process.” 597 F.2d at 629. . Rule 24(a) reads: Examination. The court may permit the defendant or his attorney and the attorney" }, { "docid": "2905324", "title": "", "text": "arising from such error.” In that case, the trial judge had answered an inquiry of a juror out of the presence of the defendant. We concluded the inquiry related to a question of law, not fact, and was adequately covered by previously given instructions. We further concluded the appellant’s presence would not have aided his defense, and that he suffered no prejudice. In Baeino v. United States, 316 F.2d 11 (10th Cir. 1963), cert. denied 375 U.S. 831, 84 S.Ct. 76, 11 L.Ed.2d 62, we held it unnecessary to determine whether the trial court’s private admonition to a juror was a part of the trial, thus requiring the appellant’s presence, in view of a showing on the record that no prejudice or harm could have resulted. We can perceive no error in the private conversation between the juror and the trial judge. Any inherent prejudice was obviated by the court reporter’s reading of the entire conversation to counsel and defendants. Ample opportunity was afforded for anyone who felt prejudiced thereby to object. There was evidently no prejudice since appellant’s counsel expressly stated he had no objection to the juror remaining on the panel. The two remaining conferences of which Jorgenson complains were attended by appellant’s counsel. Appellant was clearly not present at these conferences. The first of these conferences took place in a room designated as the lawyers’ room. At this conference, the government attorney disclosed his remaining witnesses, as well as a witness not previously listed. A discussion was had on whether the jury should be questioned as to knowledge of these witnesses. In addition, other witnesses who were to be called were discussed as to special problems with each. At the second conference, the government attorney disclosed the result of his investigation of a wife of one of the witnesses who had been observed taking notes of previous testimony. The explanation was expressly accepted by appellant’s attorney. F.R.Crim.P. Rule 43 requires that the defendant be present “at every stage of the trial * * * ” We held in Ellis v. Oklahoma, 430 F.2d 1352, 1355 (10th Cir." }, { "docid": "5612205", "title": "", "text": "His attorney was afforded the opportunity to submit questions for the judge to ask, was read the transcript of the examination and related the substance of it to his client. We further agree with the district court’s view that the appellant’s and his attorney’s presence could have been coun terproductive. In the circumstances of this case, due process was not violated by Santiago’s exclusion from the judge’s examination of the juror. Nor do we find that the appellant was in any way prejudiced by his absence. Rule 43, Fed.R.Crim.P. requires that the defendant be present “at every stage of the trial....” As we have stated, however, reversal based on a defendant’s absence at a particular proceeding is not warranted if the “record completely negatives any reasonable possibility of prejudice arising from such error.” United States v. Jorgenson, 451 F.2d 516, 520-21 (10th Cir.1971) (quoting Jones v. United States, 299 F.2d 661, 662 (10th Cir.1962), cert. denied, 371 U.S. 931, 83 S.Ct. 294, 9 L.Ed.2d 239 (1962)). Our holding in the particular circumstances of this case should not be read as a general endorsement of the practice of conducting judicial examinations of jurors for bias or misconduct without counsel and the parties present. There no doubt will be situations where fundamental fairness requires the presence of counsel and even their active participation in questioning the juror. There may even be cases where due process requires the presence of the defendant, although the possibility of juror intimidation would seem to render such instances rare in criminal eases. Nevertheless, it is clear that in the instant case the presence of the defendant and his counsel was not necessary and their absence did not deny the defendant due process. Any possible prejudice was obviated by the court reporter’s reading the record of the entire juror interview to defense counsel who then related it to his client. Santiago himself was aware of the trial judge’s procedure and neither he nor his counsel objected to it. Indeed, defense counsel at no time requested that his client be present during the juror’s interview. After conferring with the" } ]

[ { "docid": "23666492", "title": "", "text": "in the company’s own stock, with but a nominal cash addition; that the transaction would leave the company insolvent, and be a fraud upon plaintiff, as its obligee and creditor; and that under these additional circumstances, the discretionary right of a court of equity to grant specific performance should be exercised, rather than that the plaintiff should be remitted to an action at law against the corporation, necessa rily to be followed by further proceedings against such of its stockholders as had taken its property by methods which, however valid between them and the corporation, were invalid as against its creditors. If specific performance be otherwise proper, equity is no longer deterred from granting its aid because of a so-called lack of mutuality in the remedy. It suffices that defendant’s compulsory performance is conditioned upon plaintiff’s continued readiness to carry out his obligation. Montgomery Traction Co. v. Montgomery Light & Water Co., 229 Fed. 672, 144 C. C. A. 82; Ames, Lectures on Legal History, p. 376. See, too, Guffey v. Smith, 237 U. S. 101, 35 Sup. Ct. 526, 59 L. Ed. 856. Nor does the need of continuous supervision bar, however much it may deter, the court from exercising jurisdiction when the ends of justice seem to require it. Joy v. St. Louis, 138 U. S. 1, 11 Sup. Ct. 243, 34 L. Ed. 843; Union Pacific R. Co. v. Chicago, R. I. & P. R. Co., 163 U. S. 564, 16 Sup. Ct. 1173, 41 L. Ed. 265; Prospect Park & C. I. R. Co. v. C. I. & B. R. Co., 144 N. Y. 152, 39 N. E. 17, 26 L. R. A. 610; Jones v. Parker, 163 Mass. 564, 40 N. E. 1044, 47 Am. St. Rep. 485; Mayor of Wolverhampton v. Emmons, 1901, 1 K. B. 515. 4. That Pratt had purchased the boats, and contracted to resell them just before this suit was brought, will not defeat plaintiff. Pratt had been the Transportation Company’s vice president and director; at the time of the alleged purchase, he was its principal stockholder; he had full" } ]

[ { "docid": "16443827", "title": "", "text": "fu Pietro of America, Inc., 191 App. Div. 580, 181 N. Y. S. 883 (1920), affirmed without opinion 229 N. Y. 596, 129 N. E. 922; Holmes v. St. Joseph Lead Co., 84 Misc. 278, 147 N. Y. S. 104 (1914), affirmed without opinion 163 App. Div. 885, 147 N. Y. S. 1117; cf. De Winter v. Thomas, 34 App. D. C. 80, 27 L. R. A. (N. S.) 634 (1909). I do not regard Badgerow v. Manhattan Trust Co., 64 F. 931 (C. C. S. D. N. Y., 1894), as an authority against this proposition. Moreover, no case has been cited or found in which a negative covenant has been held to have created an equitable lien. An agreement by an owner of property not to do certain things in respect thereto cannot be construed as giving the promisee a present interest in that property; he cannot proceed against it to satisfy the obligation. At least until threatened breach, his only right is personal against the promisor. Knott v. Shepherdstown Mfg. Co., 30 W. Va. 790, 5 S. E. 266 (1888); Western States Finance Co. v. Ruff, 108 Or. 442, 215 P. 501, 216 P. 1020 (1923). Therefore, the I. U. I. debenture covenants created only personal rights against the company, not a present security interest in its assets. Furthermore, the company at all times, whether before or after breach of the covenant, had the right while solvent to sell all of the stock in its portfolio to a purchaser with knowledge of the restrictive covenants and of their violation. That right, although not contradictory to the restrictive covenants, is inconsistent with a right to an equitable lien on the assets. It therefore compels the rejection of the equitable lien theory. See Cushing v. Chapman, supra. Connecticut Co. v. New York, N. H. & H. R. Co., 94 Conn. 13, 107 A. 646 (1919), on which plaintiff principally relies, applies, if at all, only to the negative pledge covenant; even as so applied, however, it is distinguishable. . In that case, debenture bonds issued by a railroad company con" }, { "docid": "16443830", "title": "", "text": "to the negative pledge covenant. While the scope of this equitable doctrine remains , as yet undefined, it is clear that the vast gap between the situation presented in Tulk v. Moxhay, 2 Ph. 774 (1848) and that presented in the case at bar has not yet been bridged, if indeed it ever will be. While some courts, in a limited class of cases, have recognized equitable servitudes on chattels (see Chafee, Equitable Servitudes on Chattels (1928) 41 Harv. L. Rev. 945), apparently none has applied the doctrine to negotiable instruments or to certificates of stock, negotiable in form and effect, such as are here involved. The explanation is not far to seek. Unlike Tulk v. Moxhay, there is here no dominant tenement to which the benefit of the servitude may attach. Despite dicta to the contrary by Illinois courts (see Van Sant v. Rose, 260 Ill. 401, 103 N. E. 194, 49 L. R. A. (N. S.) 186 (1913), equity looks with disfavor on servitudes in gross, the more so when, as here, the alleged servitude would enure to the benefit of a constantly changing group of people. In respect to resale restrictions, the business of the vendor may perhaps be considered the dominant-tenement (see Abergarw Brewery Co. v. Holmes, [1900] 1 Ch. 188), but even in such a case the restrictions are but rarely enforced as against subvendees. See Chafee, supra, at 979 et seq. Moreover, in the instant case there is no specific property to which the burden of the alleged equitable servitude might attach. A floating servitude, attaching to property if and. when acquired, enforced in equity as against third parties, is a completely novel conception. Nor are stocks purchasable in the open market, as were most of those in I. U. I.’s portfolio, the unique kind of property to which equitable servitudes might normally attach. Tulk v. Moxhay, supra; cf. McMurray v. Moran, 134 U. S. 150, 10 S. Ct. 427, 33 L. Ed. 814 (1890) (restriction against issuance of additional bonds secured by a mortgage on railroad property) ; Montgomery Enterprises v. Empire Theater" }, { "docid": "14725870", "title": "", "text": "St. Lawrence Trans. Co. v. Scranton Coal Co. (C. C. A.) 239 F. 603; Montgomery Enterprises v. Empire Theatre Co., 204 Ala. 566, 86 So. 880, 19 A. L. R. 987; Rider, Petitioner, 16 R. I. 271, 15 A. 72. We can discover no justification for decreeing a rescission, as was done in De Bekker v. Stokes, 168 App. Div. 452, 153 N. Y. S. 1066, affirmed 219 N. Y. 573, 114 N. E. 1064, because the facts here do not warrant a remedy so extreme and so disastrous to the bankrupt estate. If the purchaser at the trustee’s sale should fail to work any copyright that he purchased, when it was reasonably practicable to do so, rescission doubtless might be granted at the instance of the composer in some future suit. If the trustee shall be unable within a reasonable time to obtain a purchaser who will take title subject to the terms mentioned, the District Court should direct a reassignment of any copyright thus affected upon repayment of any unearned advance royalties upon .such copyright. Rescission ought to be allowed only where there is manifestly no purpose to render the copyright productive to the composer. In the circumstances, the rights of the composers are satisfied by a sale subject to the obligation to work any copyright that may be sold, so far as may be reasonably practicable, and subject to the lien of any royalties accruing after the sale by the trustee and to the obligation to pay such royalties as provided in the royalty contract. If a right to rescind the contract may he granted because of a fundamental breach of the implied obligation to work the copyrights, surely a lien may be imposed for royalties accruing through the use of the copyright by a subvendee, for in no other way can the right of a composer to receive royalties be preserved in a ease where the publisher has parted with title. To impose a lien, rather than to deprive the estate of the bankrupt of all interest in the copyrights, follows the analogy of the support" }, { "docid": "14725857", "title": "", "text": "at the suit of the charterer from using the vessel in any way inconsistent with the charter party. The doctrine on which the decision largely depended was laid down by Knight Bruce, L. J., in De Mattos v. Gibson, 4 De G. & J. 276, and was relied on by Jessel, M. R., in the Werderman Case, and was expressly adhered to in the Lord Strathcona decision. Lord Shaw said at page 125 of the Lord Strathcona: “If a man acquires from another rights in a ship which is already under charter, with notice of rights which required the ship to be used for a particular purpose, and not inconsistently with it, then he appears to be plainly in the position of a constructive trustee with obligations which a court of equity will not permit him to violate. It does not matter that this court cannot enforce specific performance. It can proceed, if there is expressed or clearly implied, a negative stipulation.” Professor Wade, in his article entitled “Restrictions on User” in The Law Quarterly Review, vol. XLIV, discussed the Lord Strathcona and other English eases, and said (at page 65) that “it should now be recognized as both good law and good sense that the claim of a covenantee under a restrictive condition as to user depends solely on the validity and priority of a charge thereby created.” See) also, opinion of Romer, L. J., in Bagot Pneumatic Tyre Co. v. Clipper Pneumatic Tyre Co., [1902] 1 Ch. at page 162; MacDonald v. Eyles, [1921] 1 Ch. 634; Falcke v. Gray, 4 Drew. 651; “Equitable Liabilities of Strangers” in Columbia Law Review, vol. XVIII, p. 291, by Harlan F. Stone; “Equitable Servitudes on Chattels” in Harvard Law Review, vol. XLI, p. 945, by Zechariah Chaffee. The English courts have been embarrassed by the supposed analogy of restrictive covenants relating to land, which in England required the existence of a dominant and servient tenement, and by their traditional inalfity to enforce most affirmative covenants as well as by their rule never to rescind conveyances except for fraud. The American decisions" }, { "docid": "14725854", "title": "", "text": "a part of the bargain that the patent shall be worked in a particular way and the profits be disposed of in a particular way, and no one taking with notice of that bargain can avoid the liability.” Lindley, L. J., said that the assignment was “subject to the obligation to account to the plaintiff for his royalty.” A difference between the agreement in that case and the contract in the ease at bar is that royalties were here to be paid on sales of the songs at so many cents a copy, while in- the English contract the royalties were to be based on 5 per cent, of' the net profits. It may accordingly be argued that that decision turned on the covenant to pay a percentage of the net profits and that such a covenant gave the plaintiff an interest in the patent such aa Justice Holmes recognized in Pratt v. Tuttle, 136 Mass. 233. But most of the decisions do not regard an agreement to pay a royalty based upon a certain percentage of the profits as creating an equitable ownership in a patent or copyright. Rude v. Westcott, 130 U. S. 152, 9 S. Ct. 463, 32 L. Ed. 888; Ehrlich v. Mills, Inc., 215 App. Div. 116, 213 N. Y. S. 395; Moore v. Coyne, 113 App. Div. 52, 98 N. Y. S. 892; Henderson v. Dougherty, 95 App. Div. 346, 88 N. Y. S. 665; Langdell Survey of Equity Jurisdiction (2d Ed.) p. 93. The gist of the decision in the Werderman Case and in the prior ease of De Mattos v. Gibson, 4 De G. & J. 276, on which that decision largely rested, was that one who takes property with notice that it is to be used in a particular way receives it subject to something resembling an equitable servitude. In the case at bar there was an agreement to p.ay “33%% * * * of all revenue received from Mechanical reproductions less any expenses incurred,” as well as to pay one cent upon each copy of the songs sold. Such a" }, { "docid": "14725868", "title": "", "text": "the measure of compensation agreed upon. But, even where the publisher failed to work the copyrights, it could not be said that there would be actually no remedy at law, for the courts allow actions at law because of failure to observe such implied covenants. McIntyre v. Belcher, 14 C. B. (N. S.) 655. The damages for the breach of such a covenant, however, would necessarily be determined by estimates that at best could be no more than speculative substitutes for the definite royalties prescribed by the contracts. Accordingly a court of equity would decree a rescission where the breach was so-fundamental as to amount to frustration, because the remedy at law would be inadequate. Neenan v. Otis Elevator Co., supra. A restrictive covenant affecting the use is imposed in such eases, and rescission is granted for failure to observe it. It is true that the royalties on the songs are definitely provided to be paid only “in the event of the publication” by Waterson, Berlin & Snyder Company, but, where the words of assignment of the musical compositions are absolute, it is unreasonable to suppose that there may be no exploitation of the songs, except by Waterson, Berlin & Snyder Company. It seems to us equally unreasonable to suppose that the trustee may sell them free from all rights of the composers and thus deprive the latter of the only means of fixing the royalties which they have been promised. In our opinion, while the copyrights may be sold by the trustee, they should be sold subject to the right of the composers to have them worked in their behalf and to be paid royalties according to the terms of the contracts. This is in accordance with the analogy of such decisions as Lord Strathcona Steamship Co. v. Dominion Coal Co., [1926] A. C. 108; Werderman v. Societe Generale d’Electricite, 19 Ch. D. 246; Murphy v. Christian Press Ass’n Pub. Co., 38 App. Div. 426, 56 N. Y. S. 597; New York B.-N. Co. v. Hamilton, etc., Co., 83 Hun, 593, 31 N. Y. S. 1060; Great Lakes &" }, { "docid": "14725855", "title": "", "text": "percentage of the profits as creating an equitable ownership in a patent or copyright. Rude v. Westcott, 130 U. S. 152, 9 S. Ct. 463, 32 L. Ed. 888; Ehrlich v. Mills, Inc., 215 App. Div. 116, 213 N. Y. S. 395; Moore v. Coyne, 113 App. Div. 52, 98 N. Y. S. 892; Henderson v. Dougherty, 95 App. Div. 346, 88 N. Y. S. 665; Langdell Survey of Equity Jurisdiction (2d Ed.) p. 93. The gist of the decision in the Werderman Case and in the prior ease of De Mattos v. Gibson, 4 De G. & J. 276, on which that decision largely rested, was that one who takes property with notice that it is to be used in a particular way receives it subject to something resembling an equitable servitude. In the case at bar there was an agreement to p.ay “33%% * * * of all revenue received from Mechanical reproductions less any expenses incurred,” as well as to pay one cent upon each copy of the songs sold. Such a provision involved an implied covenant to work the copyright so far as was reasonable under all the circumstances. Under the doctrine of the Werderman Case, any purchaser of the copyrights who took with notice of such a covenant would take them subject to it, and, we believe, also subject to payment of royalties, without which the obligation to work the copyright would be futile. We realize that the Werderman Case has been criticised and was distinguished in Barker v. Stickney, on the supposed ground that the Werderman decision depended on an agreement which created a specific charge. Indeed, it was said by Serutton, L. J., in Barker v. Stickney, that the Werderman decision would not be supported on the theory that mere notice of a contract relating to the use of personal property will bind a purchaser who is not a party. But in Lord Strathcona Steamship Co. v. Dominion Coal Co., [1926] A. C. 108, the purchaser of a ship who had notice of a charter party entered into for its employment was enjoined" }, { "docid": "16443828", "title": "", "text": "Va. 790, 5 S. E. 266 (1888); Western States Finance Co. v. Ruff, 108 Or. 442, 215 P. 501, 216 P. 1020 (1923). Therefore, the I. U. I. debenture covenants created only personal rights against the company, not a present security interest in its assets. Furthermore, the company at all times, whether before or after breach of the covenant, had the right while solvent to sell all of the stock in its portfolio to a purchaser with knowledge of the restrictive covenants and of their violation. That right, although not contradictory to the restrictive covenants, is inconsistent with a right to an equitable lien on the assets. It therefore compels the rejection of the equitable lien theory. See Cushing v. Chapman, supra. Connecticut Co. v. New York, N. H. & H. R. Co., 94 Conn. 13, 107 A. 646 (1919), on which plaintiff principally relies, applies, if at all, only to the negative pledge covenant; even as so applied, however, it is distinguishable. . In that case, debenture bonds issued by a railroad company con tained a covenant that if the company should thereafter mortgage any of its presently-owned property except to renew existing mortgages, the debentures would participate equally in the security of such mortgage. The court held unanimously that no valid mortgage could be effected on terms which would prevent'the bondholders from sharing in the security. Three of the five judges held further that the bonds created an equitable Hen forthwith on the property and franchises of the company owned by it at the date of issue. The majority stressed the fact that the debentures contained an affirmative covenant rather than a “personal contract not to mortgage.” Moreover, the covenant related to specific property, owned by the promisor at the time of the issuance of the debentures, and easily capable of 'identification. I need express no opinion as between the conflicting views on the Hen question. See note (1920) 33 Harv. L. Rev. 456. 6. The contention that the covenants created “something in the nature of an equitable servitude” is also, in my judgment, unfounded, even as applied" }, { "docid": "16443837", "title": "", "text": "trust for C. No such case is before me; defendants are charged neither with actual fraud nor with inducing a breach of contract. The other cases cited on this point illustrate the principle, already noted in relation to the doctrine of equitable servitudes, that one having a contract right which is specifically enforceable against the promisor because recognized in equity as unique may secure specific enforcement thereof against a transferee of the property, taking with notice of the contract relating thereto. The contention that the banks are constructive trustees, .when narrowed to the principle of these cases, is essentially the same as the contention that the debenture covenants created “something in the nature of an equitable servitude”; and both are but corollaries of the fourth, and principal, theory of liability. 8. The premise of this fourth proposition, as hereinabove stated, is that the debenture holders had a right to enjoin both the making and the renewal of each loan and the pledging and the retention of the collateral, because such act would involve breaches of both clauses; ■ the conclusion sought to be drawn therefrom, is that the debenture holders, after such a breach of either covenant, acquired something in the nature of an equitable lien on the wrongfully pledged certificates of stock, enforceable against the defendants, on the assumption that they had knowledge of or are chargeable with notice of the debenture holders’ rights. The fundamental question to be considered in this connection is whether the acceleration provision in the debentures gave the holders thereof such an adequate remedy at law for breach of the covenants as to preclude equitable jurisdiction. Although in a few cases there are statements to the contrary (Donnell v. Bennett, 22 Ch. Div. 835 (1883); American Sand & Gravel Co. v. Chicago Gravel Co., 184 Ill. App. 509 (1914); Van Sant v. Rose, supra; but cf. Brand v. Svenson, 170 Ill. App. 54 (1912), .the general rule is that an injunction against breach of a negative covenant will not issue unless the remedy therefor at law is inadequate. Cf. Javierre v. Central Altagracia, 217" }, { "docid": "16443832", "title": "", "text": "Co., 204 Ala. 566, 86 So. 880, 19 A. L. R. 987 (1920) (“first-run” motion pictures); Murphy v. Christian Press Association Publishing Co., 38 App. Div. 426, 56 N. Y. S. 597 (1899) (electrotype plates for a copyrighted book); Phonograph Co. v. Menck, [1911] A. C. 336 (patented phonographs and records). The citation of such cases as In re Waterson, Berlin & Snyder Co., 48 F.(2d) 704 (C. C. A. 2d 1931); Great Lakes & St. L. T. Co. v. Scranton Coal Co., 239 F. 603 (C. C. A. 7th 1917); Lord Strathcona Steamship Co. v. Dominion Coal Co., [1926] A. C. 108; Wederman v. Societe Generale d’Electricite, 19 Ch. Div. 246 (1881), and DeMattos v. Gibson, 4 De G. & J. 276 (1858), indicates, however, that the contention of cross-plaintiff is not that the covenants create an equitable servitude, strictly speaking, but that they create some kind of an equitable right, enforcement of which would have much the same result as would enforcement of an equitable servitude. The decisions cited are, for the most part, cases involving the right to specific performance against transferees of property who took with knowledge that the transferor thereof was under obligation to convey the property to or use it for the benefit of another. The reasoning on which such relief is granted is that the right to ■ specific performance of a contract, because of inadequacy of the remedy at law, is ,an equitable right in the property to which the contract relates, a right which is not cut off by a transfer of the property to a third party who has notice of the promisee's equity. As so limited, the contention that the covenants create “something in the nature of an equitable servitude” is but a corollary of the fourth proposition, that the debenture holders had a right to enjoin I. U. I. from borrowing from and pledging collateral to defendants, and that they therefore now have an equitable interest in the wrongfully pledged stock, enforceable against defendants, assuming that the latter took the collateral with knowledge of the contract. The right" }, { "docid": "16443836", "title": "", "text": "to treat the pledged collateral as though such a provision had been made. The defendant in that case, unlike defendants in the case at bar, was an express trustee for the benefit of the debenture holders; in such a situation, the beneficiaries clearly have a right of action against the trustee for the violation of its fiduciary duty to them. Plaintiff and cross-plaintiff also seek to charge defendants as constructive trustees on the theory that receipt of property with knowledge that the transfer is in violation of a contractual obligation creates a liability in equity in favor of the obligee. But the cases do not support this broad proposition. Angle v. Chicago, St. Paul, etc., Ry. Co., 151 U. S. 1, 25, 14 S. Ct. 240, 38 L. Ed. 55 (1894.) is not in point. All that it holds is that where A, by fraudulent means, induces B to break his contract with C, as a result of which A obtains property which would otherwise have gone to C, A holds that property in constructive trust for C. No such case is before me; defendants are charged neither with actual fraud nor with inducing a breach of contract. The other cases cited on this point illustrate the principle, already noted in relation to the doctrine of equitable servitudes, that one having a contract right which is specifically enforceable against the promisor because recognized in equity as unique may secure specific enforcement thereof against a transferee of the property, taking with notice of the contract relating thereto. The contention that the banks are constructive trustees, .when narrowed to the principle of these cases, is essentially the same as the contention that the debenture covenants created “something in the nature of an equitable servitude”; and both are but corollaries of the fourth, and principal, theory of liability. 8. The premise of this fourth proposition, as hereinabove stated, is that the debenture holders had a right to enjoin both the making and the renewal of each loan and the pledging and the retention of the collateral, because such act would involve breaches of" }, { "docid": "16443825", "title": "", "text": "discussion, however, the cases cited will be treated as though advanced in support of four nominally separate, although in reality to a large extent interrelated, theories of liability: (1) That the issuance of the debentures created an equitable lien for the benefit of the debenture holders on all of the assets of I. U. 1., whether held by the company at that time or thereafter acquired; (2) that the covenants created “something in the nature of an equitable servitude” on all such assets of T. U. I.; (3) that defendants are constructive trustees of the pledged collateral for the benefit of the debenture holders, either because they participated in a breach of trust or knowingly and unjustifiably interfered with the debenture holders’ contract rights; (4) that the debenture holders had a right, enforceable in equity, to continued performance of their contract by I. U. I., and consequently now have an equitable right of reparation against those who knowingly invaded that right, even though they did not induce the breach of contract. 5. The claim of an equitable^, lien on all of the assets of I. U. I. then held and subsequently acquired, created by the issuance of the debentures, is without foundation. This claim, as well as that of “something in the nature of an equitable servitude” is rested on the negative pledge clause, for that covenant alone purports to restrict the use of property. I have hereinabove determined that there was no violation of this restriction. But even if the negative pledge clause prohibited the pledges in question, no equitable lien can be created out of that prohibition. There was here no agreement to set aside or to hold and no appropriation or intention to appropriate any specific property or fund as collateral security for the debenture obligations, the prerequisite to the creation of an equitable lien. Cushing v. Chapman, 115 F. 237 (C. C. E. D. Mo. 1902); Addison v. Enoch, 48 App. Div. 111, 62 N. Y. S. 613 (1900), affirmed without opinion 168 N. Y. 658, 61 N. E. 1127 (1901); Gosselin Corporation v. Mario Tapparelli" }, { "docid": "16443831", "title": "", "text": "alleged servitude would enure to the benefit of a constantly changing group of people. In respect to resale restrictions, the business of the vendor may perhaps be considered the dominant-tenement (see Abergarw Brewery Co. v. Holmes, [1900] 1 Ch. 188), but even in such a case the restrictions are but rarely enforced as against subvendees. See Chafee, supra, at 979 et seq. Moreover, in the instant case there is no specific property to which the burden of the alleged equitable servitude might attach. A floating servitude, attaching to property if and. when acquired, enforced in equity as against third parties, is a completely novel conception. Nor are stocks purchasable in the open market, as were most of those in I. U. I.’s portfolio, the unique kind of property to which equitable servitudes might normally attach. Tulk v. Moxhay, supra; cf. McMurray v. Moran, 134 U. S. 150, 10 S. Ct. 427, 33 L. Ed. 814 (1890) (restriction against issuance of additional bonds secured by a mortgage on railroad property) ; Montgomery Enterprises v. Empire Theater Co., 204 Ala. 566, 86 So. 880, 19 A. L. R. 987 (1920) (“first-run” motion pictures); Murphy v. Christian Press Association Publishing Co., 38 App. Div. 426, 56 N. Y. S. 597 (1899) (electrotype plates for a copyrighted book); Phonograph Co. v. Menck, [1911] A. C. 336 (patented phonographs and records). The citation of such cases as In re Waterson, Berlin & Snyder Co., 48 F.(2d) 704 (C. C. A. 2d 1931); Great Lakes & St. L. T. Co. v. Scranton Coal Co., 239 F. 603 (C. C. A. 7th 1917); Lord Strathcona Steamship Co. v. Dominion Coal Co., [1926] A. C. 108; Wederman v. Societe Generale d’Electricite, 19 Ch. Div. 246 (1881), and DeMattos v. Gibson, 4 De G. & J. 276 (1858), indicates, however, that the contention of cross-plaintiff is not that the covenants create an equitable servitude, strictly speaking, but that they create some kind of an equitable right, enforcement of which would have much the same result as would enforcement of an equitable servitude. The decisions cited are, for the most" }, { "docid": "11677616", "title": "", "text": "Hamilton Bank Note, etc., Co., 83 Hun, 593, 31 N. Y. Supp. 1060; Id., 28 App. Div. 411, 50 N. Y. Supp. 1093. In Standard Fashion Co. v. The Siegel-Cooper Co. & I., 30 App. Div. 564, 52 N. Y. Supp. 433, Justice O’Brien stated the rule as follows: “Where there was an exclusive contract between the plaintiff and one defendant, the plaintiff, as against the other defendant, who, with notice of the plaintiff’s rights, had contracted with its codefendant, was entitled to relief upon the ground, not of any contractual relation, but that such other defendant had engaged knowingly in a plan or contract to wrong and in jure \"the plaintiff.” In federal courts the precise question here involved has * been considered. In New England Phonograph Co. v. Edison et al. (C. C.) 110 Fed. 26, Judge Gray held that a bill such as this was not “for infringement of the patents under which complainant was a licensee, but is one that seeks to restrain those who are alleged to be acting under the original licensor from violating the negative covenants contained in said license contract. The allegations of identity of interest among the codefendants and of general conspiracy are too positive and clear to be ignored.” This decision was followed by Judge Wheeler in New York Phonograph Company v. National Phonograph Company (C. C.) 112 Fed. 822. The principle enunciated in these cases applies here. It is there held that the character of the alleged wrong is such as will, in a proper case, be restrained by a court of equity. Apollinaris Co. v. Scherer (C. C.) 27 Fed. 18, and cases cited. It appears to be reasonably well settled that the agreement of a predecessor in title, even where the title relates to personal property, follows the transfer, where such personal property is acquired with notice of the agreement. Murphy v. Christian Press Ass’n Pub. Co., 38 App. Div. 426, 56 N. Y. Supp. 597; Columbia Phonograph Co. v. Whitson (Ct. of App. D. C. April, 1901) 18 App. D. C. 565, 98 O. G. 418." }, { "docid": "14725869", "title": "", "text": "of the musical compositions are absolute, it is unreasonable to suppose that there may be no exploitation of the songs, except by Waterson, Berlin & Snyder Company. It seems to us equally unreasonable to suppose that the trustee may sell them free from all rights of the composers and thus deprive the latter of the only means of fixing the royalties which they have been promised. In our opinion, while the copyrights may be sold by the trustee, they should be sold subject to the right of the composers to have them worked in their behalf and to be paid royalties according to the terms of the contracts. This is in accordance with the analogy of such decisions as Lord Strathcona Steamship Co. v. Dominion Coal Co., [1926] A. C. 108; Werderman v. Societe Generale d’Electricite, 19 Ch. D. 246; Murphy v. Christian Press Ass’n Pub. Co., 38 App. Div. 426, 56 N. Y. S. 597; New York B.-N. Co. v. Hamilton, etc., Co., 83 Hun, 593, 31 N. Y. S. 1060; Great Lakes & St. Lawrence Trans. Co. v. Scranton Coal Co. (C. C. A.) 239 F. 603; Montgomery Enterprises v. Empire Theatre Co., 204 Ala. 566, 86 So. 880, 19 A. L. R. 987; Rider, Petitioner, 16 R. I. 271, 15 A. 72. We can discover no justification for decreeing a rescission, as was done in De Bekker v. Stokes, 168 App. Div. 452, 153 N. Y. S. 1066, affirmed 219 N. Y. 573, 114 N. E. 1064, because the facts here do not warrant a remedy so extreme and so disastrous to the bankrupt estate. If the purchaser at the trustee’s sale should fail to work any copyright that he purchased, when it was reasonably practicable to do so, rescission doubtless might be granted at the instance of the composer in some future suit. If the trustee shall be unable within a reasonable time to obtain a purchaser who will take title subject to the terms mentioned, the District Court should direct a reassignment of any copyright thus affected upon repayment of any unearned advance royalties upon" }, { "docid": "14725858", "title": "", "text": "Review, vol. XLIV, discussed the Lord Strathcona and other English eases, and said (at page 65) that “it should now be recognized as both good law and good sense that the claim of a covenantee under a restrictive condition as to user depends solely on the validity and priority of a charge thereby created.” See) also, opinion of Romer, L. J., in Bagot Pneumatic Tyre Co. v. Clipper Pneumatic Tyre Co., [1902] 1 Ch. at page 162; MacDonald v. Eyles, [1921] 1 Ch. 634; Falcke v. Gray, 4 Drew. 651; “Equitable Liabilities of Strangers” in Columbia Law Review, vol. XVIII, p. 291, by Harlan F. Stone; “Equitable Servitudes on Chattels” in Harvard Law Review, vol. XLI, p. 945, by Zechariah Chaffee. The English courts have been embarrassed by the supposed analogy of restrictive covenants relating to land, which in England required the existence of a dominant and servient tenement, and by their traditional inalfity to enforce most affirmative covenants as well as by their rule never to rescind conveyances except for fraud. The American decisions have permitted somewhat broader relief in certain circumstances. Courts in the United States have enforced rights resembling an equitable servitude binding on a third party who has acquired personal property from one who is under a contract to use it for a particular purpose or in a particular way. Murphy v. Christian Press Ass’n Pub. Co., 38 App. Div. 426, 56 N. Y. S. 597; New York B.-N. Co. v. Hamilton, etc., Co., 83 Hun, 593, 31 N. Y. S. 1060; Great Lakes & St. Lawrence Trans. Co. v. Scranton Coal Co. (C. C. A.) 239 F. 603; Lorillard Co. v. Weingarden (D. C.) 280 F. 238; Montgomery Enterprises v. Empire Theatre Co., 204 Ala. 566, 86 So. 880,19 A. L. R. 987; Rider, Petitioner, 16 R. I. 271,15 A. 72. See Lord Strathcona Steamship Co. v. Dominion Coal Co., and the Werderman Case already diseussed. In both countries, where there has been a conveyance upon an agreement to pay the grantor sums of money based upon the earnings of property transferred, the courts have" }, { "docid": "16443829", "title": "", "text": "tained a covenant that if the company should thereafter mortgage any of its presently-owned property except to renew existing mortgages, the debentures would participate equally in the security of such mortgage. The court held unanimously that no valid mortgage could be effected on terms which would prevent'the bondholders from sharing in the security. Three of the five judges held further that the bonds created an equitable Hen forthwith on the property and franchises of the company owned by it at the date of issue. The majority stressed the fact that the debentures contained an affirmative covenant rather than a “personal contract not to mortgage.” Moreover, the covenant related to specific property, owned by the promisor at the time of the issuance of the debentures, and easily capable of 'identification. I need express no opinion as between the conflicting views on the Hen question. See note (1920) 33 Harv. L. Rev. 456. 6. The contention that the covenants created “something in the nature of an equitable servitude” is also, in my judgment, unfounded, even as applied to the negative pledge covenant. While the scope of this equitable doctrine remains , as yet undefined, it is clear that the vast gap between the situation presented in Tulk v. Moxhay, 2 Ph. 774 (1848) and that presented in the case at bar has not yet been bridged, if indeed it ever will be. While some courts, in a limited class of cases, have recognized equitable servitudes on chattels (see Chafee, Equitable Servitudes on Chattels (1928) 41 Harv. L. Rev. 945), apparently none has applied the doctrine to negotiable instruments or to certificates of stock, negotiable in form and effect, such as are here involved. The explanation is not far to seek. Unlike Tulk v. Moxhay, there is here no dominant tenement to which the benefit of the servitude may attach. Despite dicta to the contrary by Illinois courts (see Van Sant v. Rose, 260 Ill. 401, 103 N. E. 194, 49 L. R. A. (N. S.) 186 (1913), equity looks with disfavor on servitudes in gross, the more so when, as here, the" }, { "docid": "14725859", "title": "", "text": "have permitted somewhat broader relief in certain circumstances. Courts in the United States have enforced rights resembling an equitable servitude binding on a third party who has acquired personal property from one who is under a contract to use it for a particular purpose or in a particular way. Murphy v. Christian Press Ass’n Pub. Co., 38 App. Div. 426, 56 N. Y. S. 597; New York B.-N. Co. v. Hamilton, etc., Co., 83 Hun, 593, 31 N. Y. S. 1060; Great Lakes & St. Lawrence Trans. Co. v. Scranton Coal Co. (C. C. A.) 239 F. 603; Lorillard Co. v. Weingarden (D. C.) 280 F. 238; Montgomery Enterprises v. Empire Theatre Co., 204 Ala. 566, 86 So. 880,19 A. L. R. 987; Rider, Petitioner, 16 R. I. 271,15 A. 72. See Lord Strathcona Steamship Co. v. Dominion Coal Co., and the Werderman Case already diseussed. In both countries, where there has been a conveyance upon an agreement to pay the grantor sums of money based upon the earnings of property transferred, the courts have implied a covenant to render the subject-matter of the contract productive — if the property was a mine, a covenant to mine, quarry, or drill; if it consisted of a patent or copyright, a covenant to work the patent or copyright. Telegraph Dispatch & Intelligence Co. v. McLean, 8 Ch. App. 658; McIntyre v. Belcher, 14 C. B. (N. S.) 655; Brewster v. Lanyon Zinc Co. (C. C. A.) 140 F. 801; Neenan v. Otis Elevator Co. (C. C. A.) 194 F. 414; Pritchard v. McLeod (C. C. A.) 205 F. 24; Oscar Barnett Foundry Co. v. Crowe (C. C. A.) 219 F. 450; Great Lakes & St. Lawrence Transp. Co. v. Scranton Coal Co. (C. C. A.) 239 F. 603; Diamond Alkali Co. v. P. C. Tomson & Co. (C. C. A.) 35 F.(2d) 117; Wood v. Lady Duff-Gordon, 222 N. Y. 88, 118 N. E. 214; Ellis v. Swan, 38 R. I. 534, 96 A. 840; Dow v. Harkin, 67 N. H. 383, 29 A. 846; Gillette v. Metzgar Register Co., 243 Mich." }, { "docid": "16443826", "title": "", "text": "an equitable^, lien on all of the assets of I. U. I. then held and subsequently acquired, created by the issuance of the debentures, is without foundation. This claim, as well as that of “something in the nature of an equitable servitude” is rested on the negative pledge clause, for that covenant alone purports to restrict the use of property. I have hereinabove determined that there was no violation of this restriction. But even if the negative pledge clause prohibited the pledges in question, no equitable lien can be created out of that prohibition. There was here no agreement to set aside or to hold and no appropriation or intention to appropriate any specific property or fund as collateral security for the debenture obligations, the prerequisite to the creation of an equitable lien. Cushing v. Chapman, 115 F. 237 (C. C. E. D. Mo. 1902); Addison v. Enoch, 48 App. Div. 111, 62 N. Y. S. 613 (1900), affirmed without opinion 168 N. Y. 658, 61 N. E. 1127 (1901); Gosselin Corporation v. Mario Tapparelli fu Pietro of America, Inc., 191 App. Div. 580, 181 N. Y. S. 883 (1920), affirmed without opinion 229 N. Y. 596, 129 N. E. 922; Holmes v. St. Joseph Lead Co., 84 Misc. 278, 147 N. Y. S. 104 (1914), affirmed without opinion 163 App. Div. 885, 147 N. Y. S. 1117; cf. De Winter v. Thomas, 34 App. D. C. 80, 27 L. R. A. (N. S.) 634 (1909). I do not regard Badgerow v. Manhattan Trust Co., 64 F. 931 (C. C. S. D. N. Y., 1894), as an authority against this proposition. Moreover, no case has been cited or found in which a negative covenant has been held to have created an equitable lien. An agreement by an owner of property not to do certain things in respect thereto cannot be construed as giving the promisee a present interest in that property; he cannot proceed against it to satisfy the obligation. At least until threatened breach, his only right is personal against the promisor. Knott v. Shepherdstown Mfg. Co., 30 W." }, { "docid": "14725856", "title": "", "text": "provision involved an implied covenant to work the copyright so far as was reasonable under all the circumstances. Under the doctrine of the Werderman Case, any purchaser of the copyrights who took with notice of such a covenant would take them subject to it, and, we believe, also subject to payment of royalties, without which the obligation to work the copyright would be futile. We realize that the Werderman Case has been criticised and was distinguished in Barker v. Stickney, on the supposed ground that the Werderman decision depended on an agreement which created a specific charge. Indeed, it was said by Serutton, L. J., in Barker v. Stickney, that the Werderman decision would not be supported on the theory that mere notice of a contract relating to the use of personal property will bind a purchaser who is not a party. But in Lord Strathcona Steamship Co. v. Dominion Coal Co., [1926] A. C. 108, the purchaser of a ship who had notice of a charter party entered into for its employment was enjoined at the suit of the charterer from using the vessel in any way inconsistent with the charter party. The doctrine on which the decision largely depended was laid down by Knight Bruce, L. J., in De Mattos v. Gibson, 4 De G. & J. 276, and was relied on by Jessel, M. R., in the Werderman Case, and was expressly adhered to in the Lord Strathcona decision. Lord Shaw said at page 125 of the Lord Strathcona: “If a man acquires from another rights in a ship which is already under charter, with notice of rights which required the ship to be used for a particular purpose, and not inconsistently with it, then he appears to be plainly in the position of a constructive trustee with obligations which a court of equity will not permit him to violate. It does not matter that this court cannot enforce specific performance. It can proceed, if there is expressed or clearly implied, a negative stipulation.” Professor Wade, in his article entitled “Restrictions on User” in The Law Quarterly" } ]

[ { "docid": "18651195", "title": "", "text": "of race, color, religion, sex or national origin. 42 U.S.C. § 3604(a) (emphasis added). This provision is as broad as Congress could have made it and it reaches every private and public practice that makes housing more difficult to obtain on prohibited grounds. United States v. City of Parma, 1 EOHC ¶ 13,616 (N.D.Ohio 1973); United States v. Youritan Construction Corp., 370 F.Supp. 643 (N.D.Cal.1973), aff’d in relevant part, 509 F.2d 623 (9th Cir. 1975); Zuch v. Hussey, 394 F.Supp. 1028 (E.D.Mich.1975), aff’d in relevant part, 547 F.2d 1168 (6th Cir. 1977) (per curiam). C. Pattern or Practice of Discrimination 7. To satisfy the pattern or practice provision of Section 813, 42 U.S.C. § 3613, the Government must prove more than an isolated, accidental or peculiar departure from a non-discriminatory norm. United States v. Pelzer Realty, 484 F.2d 438, 445 (5th Cir. 1973), cert, denied, 416 U.S. 936, 94 S.Ct. 1935, 40 L.Ed.2d 286 (1974); United States v. Reddoch, 1 EOHC ¶ 13,569 (S.D.Ala.1972), aff’d, 467 F.2d 897 (5th Cir. 1972). When, as here, a policy of regular application is itself alleged to be discriminatory, the pattern or practice requirement is satisfied. United States v. Hughes Memorial Home, 396 F.Supp. 544, 551 (W.D.Va.1975); see also 106 Cong.Rec. 7223 (Senator Keating). D. Standards for Proving Fair Housing Act Violations 8. There are two ways of proving that rights secured by the Fair Housing Act have been violated. One is to show that the actions complained of were discriminatorily motivated. See, e. g., United States v. West Peachtree Tenth Corp., 437 F.2d 221 (5th Cir. 1971). In the absence of proof of racially discriminatory intent, the other way to establish a violation of the Act is to show that certain conduct has a segregative effect and that the conduct lacks an adequate, countervailing, legitimate justification. Metropolitan Housing Development Corporation v. Village of Arlington Heights (hereinafter Arlington Heights II) 558 F.2d 1283 (7th Cir. 1977), cert, denied, 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772 (1978); Resident Advisory Board v. Rizzo, 564 F.2d 126 (3rd Cir. 1977); United States v. City of" } ]

[ { "docid": "11448574", "title": "", "text": "right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property. . One court has found a § 1982 cause of action in a situation similar to that faced by Stack-house, based on the right to hold real property. Pina v. Township of Ahington, P.H.E.O.H. Rptr. 1115, 257 (E.D.Pa.1978). Other courts, however, have declined to expand the reach of §§ 1981 and 1982 in cases which involved valid fair housing claims under the Act. E.g., Smith v. Stechel, 510 F.2d 1162 (9th Cir.1975); Tokaji v. Toth, P.H.E.O.H. Rptr. ¶ 13,679 (N.D.Ohio 1974). . Section 3603 defines certain terms, sets forth exemptions to § 3604 and provides effective dates for the prohibitions in the statute. Section 3605 involves discrimination in the financing of housing, while § 3606 covers brokerage services. . The Laufman court found that a § 3617 violation could be stated independently of a violation of another enumerated section, because a contrary interpretation would make § 3617 redundant. 408 F.Supp. at 497-98. . See also United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 520, 99 L.Ed. 615 (1955) (a court must give effect, if possible, to every clause and word of a statute). . Even if it were necessary that there be a violation of § 3603, 3604, 3605 or 3606, it could be argued that DeSitter’s alleged acts violated § 3604(a) by \"otherwise mak[ing] unavailable or deny[ing] a dwelling” to Stackhouse. This phrase appears to be as broad a prohibition as Congress could have made, and all practices which have the effect of making dwellings unavailable on the basis of race are therefore unlawful. United States v. Housing Authority of the City of Chickasaw, 504 F.Supp. 716, 726-27 (S.D.Ala.1980); United States v. Hughes Memorial Home, 396 F.Supp. 544, 549 (W.D.Va.1975); United States v. City of Parma, P.H.E.O.H. Rptr. ¶ 13,616 (N.D.Ohio 1973); United States v. Youritan Construction Co., 370 F.Supp. 643, 648 (N.D.Cal.1973), aff’d in relevant part, 509 F.2d 623 (9th Cir.1975); Zuch v. Hussey, 366 F.Supp. 553, 556-57 (E.D.Mich.1973); see" }, { "docid": "1027896", "title": "", "text": "analogous clause of the FDA, § 3604(f)). . Cox, 2004 WL 370242, at *6 (internal citations and quotations omitted). . 743 F.2d 1207, 1210 (7th Cir.1984). . Id. . 388 F.3d 327, 329 (7th Cir.2004) (emphasis in original). . 174 F.3d 180, 192 (4th Cir. 1999). . 309 F.3d 144, 157 n. 13 (3d Cir.2002). . Clifton Terrace Assocs., Ltd. v. United Techs. Corp., 929 F.2d 714, 719 (D.C.Cir. 1991). . Evans v. Tubbe, 657 F.2d 661, 663 n. 3 (5th Cir.1981) (erecting gate across the only access road to properties and giving gate keys only to white owners made properties ''unavailable” under § 3604(a)); United States v. Mitchell, 580 F.2d 789, 790-91 (5th Cir.1978) (steering black to one section of large housing complex and indicating that no other vacancies were available violated § 3604(a)); Southend Neighborhood, 743 F.2d at 1209 (emphasis added), citing Halet v. Wend Inv. Co., 672 F.2d 1305 (9th Cir.1982) (discriminatory rental decisions); United States v. City of Parma, 661 F.2d 562 (6th Cir.1981) (rejection of public and low-income housing and adoption of restrictive land use ordinances); Marable v. H. Walker & Assocs., 644 F.2d 390 (5th Cir.1981), appeal after remand, 704 F.2d 1219 (11th Cir. 1983) (unequal application of rental criteria by landlord); United States v. Mitchell, 580 F.2d 789 (5th Cir.1978) (racial steering); United States v. City of Black Jack, 508 F.2d 1179 (8th Cir. 1974) (adoption of restrictive zoning law); NAACP v. Am. Family Mut. Ins. Co., 978 F.2d 287, 297-98 (7th Cir.1992). The non-controlling cases cited by amici do not contradict this: they either do not deal directly with § 3604(a), see Neudecker v. Boisclair Corp., 351 F.3d 361, 364-65 (8th Cir. 2003); DiCenso v. Cisneros, 96 F.3d 1004, 1008 (7th Cir. 1996); Honce v. Vigil, 1 F.3d 1085, 1088-90 (10th Cir. 1993); Byrd v. Brandeburg, 922 F.Supp. 60, 62-66 (N.D.Ohio 1996), do not address the \"availability” issue head-on, see United States v. L&H Land Corp., Inc., 407 F.Supp. 576, 579-80 (S.D.Fla.1976); Lane v. Cole, 88 F.Supp.2d 402, 405-06 (E.D.Pa.2000), or deal with situations where current owners are suing because houses have" }, { "docid": "7928963", "title": "", "text": "case inasmuch as the court has found that the Village’s administration of the Section 235 program constituted a disparate impact violation, and the Village Defendants have offered no justification for those practices. Nor is it necessary for this court to find that the pattern or practice alleged by the government in this case is of the dimensions which justified injunctive relief in Yonkers in order to find a violation of the Fair Housing Act. See Village Defs’ Memo in Opposition, at 31. The only appropriate inquiry for this court in determining whether the undisputed facts entitle the government to relief under 42 U.S.C. § 3614(a) is whether the government has established either a “pattern or practice” violation or a violation that involves the denial of fair housing rights to a group of people and that such denial raises an issue of general “public importance.” United States v. City of Parma, Ohio, 494 F.Supp. 1049, 1094-95 (N.D.Ohio 1980), aff'd in part and rev’d in part, 661 F.2d 562 (6th Cir.1981), cert. denied, 456 U.S. 926, 102 S.Ct. 1972, 72 L.Ed.2d 441, reh’g denied, 456 U.S. 1012, 102 S.Ct. 2308, 73 L.Ed.2d 1309 (1982); United States v. Hunter, 459 F.2d 205, 217 (4th Cir.1972), cert. denied, 409 U.S. 934, 93 S.Ct. 235, 34 L.Ed.2d 189 (1972), reh’g denied, 413 U.S. 923, 93 S.Ct. 3046, 37 L.Ed.2d 1045 (1973). The government has established both. The Village’s pre-selection scheme discriminated against the group of all black residents in the Nassau County Consortium by denying them the opportunity to apply for Section 235 houses, a right protected by the Fair Housing Act. The Attorney General’s determination that this denial of rights raises an issue of general public importance, see Amended Complaint ¶ 120, is not reviewable by the court. Yonkers, 624 F.Supp., at 1291 n. 9; United States v. City of Parma, 494 F.Supp., at 1095 n. 64. Thus, the government has established its right to bring this suit under § 3614(a). In addition, the government has established a pattern or practice violation. The practices which are the basis of the government’s Fair Housing Act" }, { "docid": "5397403", "title": "", "text": "that this language is “as broad as Congress could have made it.” E.g., United States v. Youritan Construction Co., 370 F.Supp. 643, 648 (N.D.Cal.1973), aff’d. as modified, 509 F.2d 623 (9th Cir. 1975); Zuch v. Hussey, 366 F.Supp. 553, 557 (E.D.Mich.1973). Among others, § 3604(a) has been construed to proscribe the following practices: refusal to provide financing in racially integrated areas, “mortgage redlining,” (Laufman v. Oakley Bldg. & Loan Co., 408 F.Supp. 489 (S.D.Ohio 1976); the adoption of exclusionary ordinances by a municipality (United States v. City of Parma, P.H.E.O.H.Rptr. ¶ 13,616 (N.D.Ohio 1973)); the rejection by a noncommercial orphanage of minority orphans (United States v. Hughes Memorial Home, 396 F.Supp. 544 (W.D.Va.1975)); the assignment of lower appraisal values to homes in racially integrated neighborhoods (United States v. American Institute of Real Estate Appraisers, 422 F.Supp. 1072 (N.D.Ill.1977)); a zoning ordinance which prohibited construction of any new multiple-family dwellings (United States v. City of Black Jack, Missouri, 508 F.2d 1179 (8th Cir. 1974)); the steering of a prospective buyer into or away from an area because of race (Zuch v. Hussey, 394 F.Supp. 1028 (E.D.Mich.1975), aff’d. 547 F.2d 1168 (6th Cir. 1977)). Thus, many of the practices which have been prohibited by § 3604(a) have not been directly related to a refusal to sell or rent, but have included a variety of practices which have the effect of denying dwellings on prohibited grounds. The Department of Housing and Urban Development has interpreted the provisions of § 3604(a) of the Fair Housing Act as applicable to insurance redlining. Spe-cifically, HUD has commented on the close nexus among insurance, financing, and the availability of suitable housing: Adequate insurance coverage is often a prerequisite to obtaining financing. Insurance redlining, by denying or impeding coverage makes mortgage money unavailable, rendering dwellings ‘unavailable’ as effectively as the denial of financial ■ assistance on other grounds Such interpretations by HUD of the language of the Fair Housing Act are “entitled to great weight.” Trafficante v. Metropolitan Life Ins., 409 U.S. 205, 210, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972); Gladstone Realtors v. Village of Bellwood, -" }, { "docid": "23024863", "title": "", "text": "the other tenants, United States v. Youritan Construction Co., supra, 370 F.Supp. at 650 (“Prospective compatibility with other tenants is not an appropriate rental consideration where its application would have a discriminatory racial impact”); or because the applicant failed to comply with special procedures to show that he would be “a ‘congenial’ tenant,” United States v. Grooms, 348 F.Supp. 1130, 1133 (M.D.Fla.1972); or because he was a “belligerent appearing” applicant, United States v. West Peachtree Tenth Corp., 437 F.2d 221, 223-24 (5th Cir. 1971) (“While such a [screening] procedure appears necessary and practical on the part of management in order to keep undesirables of any race out of the building, it does create the ‘opportunity’ for discrimination in rentals”); or because the applicant was seen as “irritable and belligerent, more belligerent, and most belligerent,” and was classified with potential “troublemakers,” Newbern v. Lake Lorelei, Inc., 308 F.Supp. 407; 413, 414 (S.D.Ohio 1968) (§ 1982 action); or because the applicant was classified as a “troublemaker” on the strength of the defendant’s belief that the applicant might bring a court challenge to certain subdivision building restrictions, Williams v. Matthews Co., 499 F.2d 819, 828 n. 11 (8th Cir.), cert. denied, 419 U.S. 1021, 1027, 95 S.Ct. 495, 507, 42 L.Ed.2d 294, 302 (1974); or because the applicant may have had unclean clothing producing an offensive or stale odor, Stevens v. Dobs, Inc., 483 F.2d 82, 83 (4th Cir. 1973). On remand, the court here should be similarly probing. The decision whether to credit the reasons advanced requires consideration of two questions: whether the factors cited were actually believed by those who voted “no”; and if so, whether it was their belief in those factors that impelled them to vote “no.” In making the latter determination, the logical relevance of the factor to the rejection is of significance. If the factor (whether subjective or objective) lacks relevance to the applicant’s fitness in the housing context, it becomes suspect. See, e. g., Bishop v. Pecsok, 431 F.Supp. 34, 37 (N.D.Ohio 1976) (“Objective criteria cannot have the effect of excluding blacks from housing unless the" }, { "docid": "3522381", "title": "", "text": "Verble, 622 F.2d 1227, 1232 (6th Cir.1980), the Sixth Circuit held that the fact that black plaintiffs were ultimately able to purchase a home at a price comparable to that at which it had been offered to a prospective white buyer did not cure prior discriminatory conduct (racial steering) on the part of vendors and a real estate agent. See also Trice v. Lake & Country Real Estate, 831 F.2d 1064, 1987 WL 38852 (6th Cir.1987)(unpublished disposition)(holding that plaintiffs were entitled to damages under § 3604 even though defendant did not actually prevent them from negotiating or purchasing the property); Heights Community Congress v. Hilltop Realty, Inc., 629 F.Supp. 1232, 1249 (N.D.Ohio 1983)(“It is not necessary for racial steering to be successful in order for the act to violate section 3604(a), for attempts to steer are also proscribed.”), aff'd in part and rev’d in part on other grounds, 774 F.2d 135 (6th Cir.1985); Zuch v. Hussey, 394 F.Supp. 1028, 1048 (E.D.Mich.1975)(“The fact that the defendants did not succeed in steering the plaintiffs away from the transitional neighborhoods of Detroit is not relevant; the law makes it unlawful even to attempt”)- The Court agrees with the holdings of these courts. The Supreme Court has stated that courts should give an expansive interpretation to the provisions of the FHA in order to effectuate its purposes. Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 211-12, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972). It would run contrary to the remedial purposes of the statute to hold that a defendant, acting with the intent of denying a handicapped person housing, could avoid liability merely because his efforts were unsuccessful. The Court concludes that the FHA is directed at the elimination of discriminatory conduct, not merely discriminatory results, and that plaintiffs may assert a claim under § 3604(f)(1). Even if plaintiffs may assert a claim under § 3604(f)(1), defendants argue that they did not discriminate against plaintiffs in violation of the statute. Defendants concede that several summons were issued to Steven Savoca and John Raggio, the landlords of the Broadway and Pine Street properties. However," }, { "docid": "7008870", "title": "", "text": "View Heights Corp. v. City of Black Jack, 605 F.2d 1033, 1038 (8th Cir. 1979), cert. denied, 445 U.S. 905, 100 S.Ct. 1081, 63 L.Ed.2d 321 (1980). The four-part injunction entered by the district court does no more than prohibit activities of a type which the court has found to violate the Act by making housing in Parma unavailable to persons because of race. The district court did not abuse its discretion in granting this relief. C. The affirmative provisions of the remedial order are not as unusual as Parma suggests in its brief. Most, if not all of those provisions have been incorporated in decrees of various courts which have decided Fair Housing Act cases. What is unusual is to find such a wide range of affirmative requirements in a case where the defendant is a political entity. It is common in pattern or practice suits against private defendants to require educational programs for employees and advertising programs to advise the public of the nondiscriminatory policies which will be followed. E. g., United States v. Youritan Construction Co., 370 F.Supp. 643, 652 (N.D.Cal. 1973), aff’d in pertinent part, 509 F.2d 623 (9th Cir. 1975); United States v. Long, 537 F.2d 1151, 1152 (4th Cir. 1975), cert. denied, 429 U.S. 871, 97 S.Ct. 185, 50 L.Ed.2d 151 (1976); United States v. Warwick Mobile Homes Estates, Inc., 558 F.2d 194, 196 (4th Cir. 1977). We can see no objection to requiring an educational program to acquaint those officials and employees of the City who are responsible for carrying out the terms of the remedial order of their obligations thereunder. With respect to the requirement of advertising, we have found no case where a similar requirement has been imposed upon a city or other political entity. Unlike realtors and lenders, a city does not ordinarily carry on an advertising program to promote its activities. Nevertheless, on uncontradicted evidence, Par-ma’s reputation as a closed community was found to be widespread in the Cleveland area. The advertising campaign ordered by the court, if of reasonable duration, should correct this image without imposing too great" }, { "docid": "5397402", "title": "", "text": "v. Metropolitan Life Insurance Co., 409 U.S. 205, 212, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972). The Fair Housing Act defines its policy “to provide within constitutional limitations, for fair housing throughout the United States. In general, the Act prohibits discriminatory housing practices. A discriminatory housing practice is defined as “[any] act that is unlawful under Sections 3604, 3605, or 3606 of this title.” Although these sections do not explicitly proscribe insurance redlining, plaintiffs contend that the terms and history of §§ 3604(a) and (b), 3605 and 3617 establish an intent by Congress to embrace insurance redlining within the ambit of the Act. 1. Section 3604 a. Section 3604(a) Section 3604(a) makes it unlawful “[t]o refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental .of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, or national origin.” The phrase, “otherwise make unavailable or deny” has been broadly construed, and several courts have concluded that this language is “as broad as Congress could have made it.” E.g., United States v. Youritan Construction Co., 370 F.Supp. 643, 648 (N.D.Cal.1973), aff’d. as modified, 509 F.2d 623 (9th Cir. 1975); Zuch v. Hussey, 366 F.Supp. 553, 557 (E.D.Mich.1973). Among others, § 3604(a) has been construed to proscribe the following practices: refusal to provide financing in racially integrated areas, “mortgage redlining,” (Laufman v. Oakley Bldg. & Loan Co., 408 F.Supp. 489 (S.D.Ohio 1976); the adoption of exclusionary ordinances by a municipality (United States v. City of Parma, P.H.E.O.H.Rptr. ¶ 13,616 (N.D.Ohio 1973)); the rejection by a noncommercial orphanage of minority orphans (United States v. Hughes Memorial Home, 396 F.Supp. 544 (W.D.Va.1975)); the assignment of lower appraisal values to homes in racially integrated neighborhoods (United States v. American Institute of Real Estate Appraisers, 422 F.Supp. 1072 (N.D.Ill.1977)); a zoning ordinance which prohibited construction of any new multiple-family dwellings (United States v. City of Black Jack, Missouri, 508 F.2d 1179 (8th Cir. 1974)); the steering of a prospective buyer into or away from an area" }, { "docid": "18350506", "title": "", "text": "tenants under § 3617.” R. Schwemm, Housing Discrimination Law at 198 (1983). See, e.g., Metropolitan Housing Development Corporation v. Village of Arlington Heights, 558 F.2d 1283, 1288 (7th Cir.1977), cert. denied, 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772 (1978); United States v. City of Black Jack, 508 F.2d 1179, 1188 (8th Cir.1974), cert. denied, 422 U.S. 1042, 95 S.Ct. 2656, 45 L.Ed.2d 694 (1975); United States v. City of Parma, Ohio, 494 F.Supp. 1049, 1094-1101 (N.D.Ohio 1980), aff'd as modified, 661 F.2d 562 (6th Cir. 1981), cert. denied, 456 U.S. 926, 102 S.Ct. 1972, 72 L.Ed.2d 441 (1982). The developer plaintiffs’ claims under the equal protection clause of the fourteenth amendment and the Civil Rights Acts of 1866, 42 U.S.C. §§ 1981, 1982 and 1983, are, as discussed supra, subject to the prudential limitation against raising the rights of third parties. However, in the opinion of this Court the “only effective advocate” exception applies to allow the developer plaintiffs to raise the rights of their prospective black tenants. According to plaintiffs’ allegations, the discriminatory intent of defendant was “really directed at an as yet unidentifiable group of people, i.e., blacks who might become tenants of the housing.” Gordon v. City of Cartersville, Georgia, 522 F.Supp. 753, 757 (N.D.Ga.1981). In this situation, “[t]he developers are the only effective adversaries____” Id. See Sullivan, 396 U.S. at 237, 90 S.Ct. at 404; Barrow, 346 U.S. at 259, 73 S.Ct. at 1036; West Zion Highlands v. City of Zion, 549 F.Supp. 673, 676 (N.D.Ill.1982); Riccobono v. Whitpain Tp., 497 F.Supp. 1364, 1373 (E.D.Pa.1980). Contra Halet v. Wend Investment Co., 672 F.2d 1305, 1308 (9th Cir.1982). Moreover, allowing the developer plaintiffs to assert the equal protection clause and Civil Rights Acts of 1866 rights of their prospective black tenants does not contravene footnote 22 of Worth. This Court does not read footnote 22 as limiting Sullivan -type standing to cases where a white plaintiff has an existing “contractual or other relationship protected under §§ 1981 and 1982” with a black person. Warth, 422 U.S. at 514 n. 22, 95 S.Ct. at 2213 n." }, { "docid": "17706883", "title": "", "text": "former white tenants and black prospective tenants indicating the employment of a “credit check” ruse for the purpose of denying apartments to individuals solely because of race. The findings of the district court are not demonstrated to be clearly erroneous. Rule 52(a), F. R. Civ.P., supra. These findings, coupled with the conceded fact that there had never been any black tenants in the complex during the three years of its operation despite a 100% change in tenants during the three years, were sufficient to conclude that a pattern or practice of racial discrimination not only existed, but was successful as well. United States v. West Peachtree Tenth Corporation, 5 Cir. 1971, 437 F.2d 221. Appellants’ final contentions are wholly without merit: This being a suit for injunctive relief, not one at common law, there was no right to a jury trial. United States v. Louisiana, 1950, 339 U.S. 699, 701, 70 S.Ct. 914, 917, 94 L.Ed. 1216, 1220. Without exception the same holding has been reached by district courts of this Circuit in suits by the Attorney General under the Fair Housing Act. United States v. Northside Realty Associates, Inc., N.D.Ga.1971, 324 F.Supp. 287; United States v. Bob Lawrence Realty, Inc., N.D.Ga.1970, 313 F.Supp. 870. See also Rogers v. Loether, E.D.Wis.1970, 312 F.Supp. 1008, a suit by a private plaintiff. We have not had occasion to pass on the question of jury trials in cases brought under the Fair Housing Act, but we have heretofore affirmed the holding that a jury trial is not available in a similar situation, an action brought under Title II of the Civil Rights Act of 1964, Adams v. Fazzio Real Estate Co., (E.D.La.1967) 268 F.Supp. 630, 640, affirmed 5 Cir. 1968, 396 F.2d 146. Finally, the district court’s order was modelled upon and closely parallels the order we drafted for use by the lower court in the comparable case of United States v. West Peachtree Tenth Corp., op. cit., 437 F.2d at 229. Affirmed. . Title 42, U.S.C. § 3601 et seq. provides in pertinent part: “§ 3601. Declaration of policy It is the" }, { "docid": "18651227", "title": "", "text": "sought to discriminate was not a racial class but was, instead, the class of social misfits who are ordinarily shunned by any community which is concerned with protecting its quality of life. No racial animus existed in the adoption of the residency requirement. See United States v. West Peachtree Tenth Corp., 437 F.2d 221, 223-24 (5th Cir. 1971) (dictum) (recognizing the appropriateness of policies against admission of drunks, hippies, and other undesirables of any race as not contravening § 3604 so long as policy is not a smoke screen for unlawful discrimination). . Every court of appeals which has dealt with the requirements of a prima facie case under § 3604 has adopted the effects test. E. g., Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032 (2d Cir. 1979) (In an action brought by an individual plaintiff, the court reasoned that the only role which discriminatory motivation played in a § 3604 action occurred when a defendant attempted to rebut an individual plaintiffs prima facie case.); Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 146-48 (3d Cir. 1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 1458, 55 L.Ed.2d 499 (1978); Smith v. Anchor Bldg. Corp., 536 F.2d 231, 233 (8th Cir. 1976); United States v. City of Black Jack, 508 F.2d 1179, 1184-85 (8th Cir. 1974), cert. denied, 422 U.S. 1042, 95 S.Ct. 2656, 45 L.Ed.2d 694 (1975); United States v. Youritan Construction Co., 370 F.Supp. 643, 648 (N.D.Cal.1973), aff’d in part, 509 F.2d 623 (9th Cir. 1975). . 24 C.F.R. § 841.115(c)(5) (HEW regulations regarding residency requirements). . See e. g., Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1040-43 (2d Cir. 1979) (suggested approach when looking for intent in cases brought under Fair Housing Act); Hawkins v. Town of Shaw, 461 F.2d 1171, 1172 (5th Cir. 1972) (en banc) (per curiam)." }, { "docid": "11035981", "title": "", "text": "“blockbusting”) has proven to be an effective means of stimulating the sale of homes in racially transitional neighborhoods. Heights Community Congress v. Hilltop Realty, Inc., 774 F.2d 135, 142-43 (6th Cir.1985), (quoting Zuch v. Hussey, 394 F.Supp. 1028, 1049 (E.D.Mich.1975), aff'd and remanded, 547 F.2d 1168 (6th Cir.1977)) (emphasis added), cert. denied, Hilltop Realty, Inc. v. Cleveland Heights, 475 U.S. 1019, 106 S.Ct. 1206, 89 L.Ed.2d 318 (1986). To establish a § 3604(e) claim, Plaintiffs must demonstrate that Defendants, (1) for profit, used the fear of the entrance of mentally retarded individuals into the neighborhood (2) to induce the sale of a dwelling (3) by making solicitations that would convey to the reasonable person the idea that members of a protected class are, or may be, entering the neighborhood. Heights, 774 F.2d at 141-42 (6th Cir.1985) (quoting Zuch v. Hussey, supra). Plaintiffs’ § 3604(e) claims fail because this section was intended by Congress to reach only real estate brokers and their agents. Every case addressing § 3604(e) has involved a real estate agent or a similar entity. See e.g., Heights, supra; United States v. Bob Lawrence Realty, Inc., 474 F.2d 115 (5th Cir.), cert. denied, 414 U.S. 826, 94 S.Ct. 131, 38 L.Ed.2d 59 (1973); Steptoe, 674 F.Supp. at 1321; Sanborn v. Wagner, 354 F.Supp. at 294. Congress clearly signalled this purpose by limiting the scope of § 3604(e) to inducements made “for profit.” Although the real estate agent need not actually receive a profit to fall under § 3604(e), Sanborn, 354 F.Supp. at 294 (quoting United States v. Mintzes, 304 F.Supp. 1305, 1311-12 (D.Md.1969)), the agent must intend to receive financial gain from the inducement of the sale. Schwemm § 17.2 (“The requirement [under § 3604(e) ] that the defendant’s representations be “for profit” simply means that they must be made while the salesperson was conducting business”). The Court is aware of no § 3604(e) decision in which the actual or expected profit was other than commission fees or other financial gain normally accruing to real estate brokers. Congress did not intend to reach beyond real-estate brokers and certainly" }, { "docid": "4031445", "title": "", "text": "during the period in question, in the Village of Bellwood, defendants engaged in racial steering of prospective real estate customers by influencing Caucasians to buy homes outside of the Zuelke Drive area, and influencing Negro homebuyers into making residential purchases only in that area. Racial steering in the sale or rental of real estate is a violation of the Fair Housing Act of 1968. United States v. Mitchell, 580 F.2d 789, 791 (5th Cir. 1978); United States v. American Institute of Real Estate Appraisers, 442 F.Supp. 1072, 1079 (N.D.Ill.1977). This kind of racist behavior has been defined as the use of a word, phrase, or act by a real estate broker or salesperson which is intended to influence the choice of a prospective property buyer on a racial basis. Zuch v. Hussey, 394 F.Supp. 1028, 1047 (E.D.Mich.1975). It is a form of race discrimination which may be established either by proof of purpose or of effect. Acevedo v. Nassau County, New York, 369 F.Supp. 1384, 1387 (E.D.N.Y.1974). Despite this rule, proof by effect is impossible on the facts at bar; the evidence does not show that there was an adverse effect on anyone as the result of what plaintiffs allege was a practice of racial steering by defendants. Therefore, the court must distinguish the showing made here from that in Resident Advisory Board v. Rizzo, 564 F.2d 126 (3rd Cir. 1977) where it was held that proof of discriminatory effect alone may justify a federal equitable response when a claim of housing discrimination is involved. Indeed, this is always true whenever a racially discriminatory practice in housing is sought to be proved solely by the testimony of testers. Of course, this is not to suggest that a tester is incompetent to testify. It is generally recognized that he or she is a competent witness. See Zuch v. Hussey, 394 F.Supp. 1028, 1051 (E.D.Mich.1975); compare Wharton v. Knefel, 562 F.2d 550, 554 (8th Cir. 1977). In fact, the court of appeals for this circuit has said, in passing, that “tester evidence itself creates a triable fact issue.” Village of Bellwood v." }, { "docid": "13530721", "title": "", "text": "§ 1982 violations. Dillon v. AFBIC Development Corp., 597 F.2d 556, 563-64 (5th Cir.1979). The Fair Housing Act and § 1982 are independent statutory schemes. The provisions of § 3612(c) do not limit the amount of damages recoverable under § 1982. 597 F.2d at 563. Whether $1,000 was correct or incorrect, the plaintiff is entitled to have the punitive damage claim considered without the burden of a statutory maximum. III. Injunctive Relief The district court permanently enjoined defendants from “unequally applying rental criteria, including marital status and employment and credit histories, in a manner that discriminates against plaintiff or anyone else on the basis of race” in violation of the Fair Housing Act and §§ 1981, 1982. Once a court finds that a landlord has discriminated against prospective tenants, it may enjoin the landlord from engaging in such practices. 42 U.S.C.A. § 3610(d). The Act also authorizes “such affirmative action as may be appropriate.” Id. Injunctive relief should be structured to achieve the twin goals of insuring that the Act is not violated in the future and removing any lingering effects of past discrimination. United States v. Jamestown Center-in-the-Grove Apartments, 557 F.2d 1079 (5th Cir.1977). The relief must be tailored in each instance to the needs of the particular situation, a matter peculiarly within the discretion of the district judge. Gore v. Turner, 563 F.2d at 165. In United States v. West Peachtree Tenth Corp., 437 F.2d 221, 229-31 (5th Cir.1971), this Court set forth an injunctive decree for use in an apartment rental discrimination case. There is no indication why a similar decree should not be entered in this case. The court found that defendant willfully discriminated against the plaintiff on the basis of race in refusing to rent him an apartment, but refused to order the defendant to lease an apartment to the plaintiff. The defendant admitted that no black applicants had ever been accepted as tenants at defendant’s apartment complex, and the record established the existence of racially subjective leasing criteria and procedures. The order fails to require any affirmative act by the defendant to correct the" }, { "docid": "18350541", "title": "", "text": "L.Ed.2d 499 (1978); Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1290-91 (7th Cir. 1977) cert. denied, 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772 (1978); United States v. City of Black Jack, Missouri, 508 F.2d 1179, 1186 (8th Cir.1974), cert. denied, 422 U.S. 1042, 95 S.Ct. 2656, 45 L.Ed.2d 694 (1975); Atkins v. Robinson, 545 F.Supp. 852, 866 (E.D.Va.1982); United States v. City of Parma, Ohio, 494 F.Supp. 1049, 1054-55 (N.D.Ohio 1980), affd. in part and rev’d in part, 661 F.2d 562 (6th Cir.1981), cert. denied, 456 U.S. 926, 102 S.Ct. 1972, 72 L.Ed.2d 441 (1982). See generally, R. Schemm, Housing Discrimination Law at 126-27, 139-43 (1983). A violation of the Fair Housing Act can be made out by proof of discriminatory effect alone, because the purpose of the Act is to promote integrated housing rather than simply outlaw invidious discrimination. See R. Schwemm, Housing Discrimination Law at 42-43, 127 (1983). For this reason, there are two types of discriminatory effects which can establish a prima facie case under the Fair Housing Act: 1) disproportionate adverse impact on one race; or 2) perpetuation of segregated housing patterns and prevention of interracial association. Metropolitan Housing Development Corporation v. Village of Arlington Heights, 558 F.2d 1283, 1290 (7th Cir.1977); Atkins v. Robinson, 545 F.Supp. 852, 867 (E.D.Va.1982). See generally R. Schwemm, Housing Discrimination Law at 140-41 (1983). As discussed supra, it is the opinion of this Court that defendant’s action does not have a disproportionate adverse impact on black persons and said prior analysis need not be repeated here. The second type of effect requires an analysis of existing housing patterns and the impact that the proposed project is likely to have on those patterns. Plaintiffs argue .that defendant’s refusal to zone the Malone tract “G-l” multiple family has the effect of perpetuating racially segregated housing patterns in the City of Fenton and the St. Louis area. Plaintiffs rely on the facts that no black persons reside in the City of Fenton and that, if Westview Heights were built, approximately ten (10) to fifteen (15) blacks" }, { "docid": "7555907", "title": "", "text": "appeared as a friend-of-the-court in this action, arguing that Kyles and Pierce have standing to sue under Title VII. The Commission lakes no position with respect to tester standing under section 1981. . Section 804(a) proscribes a variety of discriminatory housing practices. See 42 U.S.C. § 3604(a). The ban on refusals to sell or rent on the basis of race, etc. is the only clause of this subsection that includes the bona fide offer requirement. Consequently, the other activities addressed by subsection (a) — refusing to negotiate for the sale or rental of housing, making housing unavailable, and denying someone housing on the basis of race, etc.— are prohibited irrespective of whether there was a bona fide offer. That is why we con-eluded in Dwivedi that Havens' rationale as to tester standing extends to section 804(a) as well as the other subsections of the statute. 895 F.2d at 1527. See Grant v. Smith, 574 F.2d 252, 255 (5th Cir.1978); Zuch v. Hussey, 394 F.Supp. 1028, 1050-51 (E.D.Mich.1975), aff'd. & remanded without published op., 547 F.2d 1168 (6th Cir.1977); United States v. Youritan Constr. Co., 370 F.Supp. 643, 650 (N.D.Cal.1973), affd. in part & rev'd in part on other grounds, 509 F.2d 623 (9th Cir.1975). . In City of Chicago v. Matchmaker Real Estate Sales Center, Inc., supra, 982 F.2d 1086, the defendants were sued for racial steering under both the Fair Housing Act and section 1982. We held that testers do have standing to sue, but we framed our holding in terms of the Fair Housing Act alone. See id. at 1095. . Indeed, the Third Circuit indicated that it intended to address standing under both statutory provisions. See 559 F.2d at 898 (“we are required to review the district court’s holding as it applies to sections 1981 and 1982”). However, as worded, the court’s actual holding is limited to section 1982 alone. See id. (\"We therefore hold that Meyers has standing to maintain his action under section 1982.”). . As our discussion makes plain, we are relying on BMC’s rationale only insofar as it concerns the testers' lack of" }, { "docid": "4031446", "title": "", "text": "on the facts at bar; the evidence does not show that there was an adverse effect on anyone as the result of what plaintiffs allege was a practice of racial steering by defendants. Therefore, the court must distinguish the showing made here from that in Resident Advisory Board v. Rizzo, 564 F.2d 126 (3rd Cir. 1977) where it was held that proof of discriminatory effect alone may justify a federal equitable response when a claim of housing discrimination is involved. Indeed, this is always true whenever a racially discriminatory practice in housing is sought to be proved solely by the testimony of testers. Of course, this is not to suggest that a tester is incompetent to testify. It is generally recognized that he or she is a competent witness. See Zuch v. Hussey, 394 F.Supp. 1028, 1051 (E.D.Mich.1975); compare Wharton v. Knefel, 562 F.2d 550, 554 (8th Cir. 1977). In fact, the court of appeals for this circuit has said, in passing, that “tester evidence itself creates a triable fact issue.” Village of Bellwood v. Gladstone Realtors, 569 F.2d 1013, 1016 (7th Cir. 1978). And at least one court has observed that proof “of the experiences of white and black ‘testers’ or ‘checkers’ has been uniformly admitted into evidence to prove the existence of discriminatory policy.” United States v. Youritan Construction Company, 370 F.Supp. 643, 650 (N.D.Cal.1973). However, in this case, the testers were not disinterested witnesses. They instigated this suit; they tested Dwayne Realty in order to advance economic and noneconomic interests of theirs they thought were at stake; and they were candid in admitting to having strong feelings against real estate brokers in general, and these defendants in particular, because of developing social conditions in their village which they attributed to them. Generally, the interests of a witness which affect his credibility signify the specific inclination that is apt to be produced by the relation between the witness and the facts at issue in the litigation, and connotes or implies concern for the advantage or disadvantage of the parties to the cause. 98 C.J.S. Witnesses § 538, see" }, { "docid": "11448575", "title": "", "text": "at 497-98. . See also United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 520, 99 L.Ed. 615 (1955) (a court must give effect, if possible, to every clause and word of a statute). . Even if it were necessary that there be a violation of § 3603, 3604, 3605 or 3606, it could be argued that DeSitter’s alleged acts violated § 3604(a) by \"otherwise mak[ing] unavailable or deny[ing] a dwelling” to Stackhouse. This phrase appears to be as broad a prohibition as Congress could have made, and all practices which have the effect of making dwellings unavailable on the basis of race are therefore unlawful. United States v. Housing Authority of the City of Chickasaw, 504 F.Supp. 716, 726-27 (S.D.Ala.1980); United States v. Hughes Memorial Home, 396 F.Supp. 544, 549 (W.D.Va.1975); United States v. City of Parma, P.H.E.O.H. Rptr. ¶ 13,616 (N.D.Ohio 1973); United States v. Youritan Construction Co., 370 F.Supp. 643, 648 (N.D.Cal.1973), aff’d in relevant part, 509 F.2d 623 (9th Cir.1975); Zuch v. Hussey, 366 F.Supp. 553, 556-57 (E.D.Mich.1973); see also Laufman, 408 F.Supp. at 492-93. However, given our interpretation of § 3617, we need not find a violation of § 3604(a) here. . When DeSitter was deposed, the criminal charge was pending against him, and he refused to answer questions regarding the facts of this case. . Given this-ruling, DeSitter is not a prevailing party, and his motion for attorney’s fees is denied." }, { "docid": "7008840", "title": "", "text": "collectively, also violated the Fair Housing Act by denying to blacks, Parma residents, and prospective low-income housing developers rights secured by Sections 804(a) and 817. Id. at 1095-96. In reaching these conclusions the district court considered the public statements of elected city officials, the open hostility to low-income housing exhibited by residents and officials alike and departures from normal practices by subordinate city employees in handling the Parmatown Woods application. C. The district court entered a separate remedial order following submissions by the parties and a hearing. United States v. City of Parma, 504 F.Supp. 913 (N.D.Ohio 1980). The “comprehensive remedial plan” formulated by the court, id. at 916, contains a general injunction against discrimination in housing by the City and a number of affirmative requirements. The general provision permanently enjoined the City, its officers, etc. from: 1. Engaging in any conduct having the purpose or effect of perpetuating or promoting racial residential segregation or of denying or abridging the right of any person to equal housing opportunity on account of race, color, religion, sex or national origin; 2. Discriminating against any person or group of persons on account of race, color, religion, sex or national origin in connection with the planning, development, construction, acquisition, financing, operation or approval of any low-income or public housing units; 3. Interfering with any person in the exercise of his right to secure equal housing opportunity for himself or for others; and 4. Taking any action which in any way denies or makes unavailable housing to persons on the basis of race, color, religion, sex or national origin. Id. at 918. The defendant was additionally ordered to: (1) establish a mandatory fair housing educational program for all city officials and employees involved in carrying out the terms of the remedial order; (2) enact a resolution welcoming persons of all races, creeds and colors to reside in Parma and setting forth its policy of nondiscrimination in housing; (3) undertake a comprehensive program of newspaper advertising to promote Parma as an equal housing opportunity community and to make copies of the liability opinion and remedial- order" }, { "docid": "18350505", "title": "", "text": "amendment equal protection claim, the corresponding 42 U.S.C. § 1983 claim, the 42 U.S.C. §§ 1981 and 1982 claims, and the Fair Housing Act claims all depend on racial discrimination of some type. With respect to these claims, the developer plaintiffs allege that defendant discriminated against black prospective tenants of West-view Heights on account of their race by exclusionary zoning. As discussed supra, even though the developer plaintiffs are not black, they have standing to assert the rights of black persons under the Fair Housing Act. Based on plaintiffs’ allegations, the developer plaintiffs also have standing under § 3617 of the Fair Housing Act to assert their own rights. Section 3617 prohibits interference with persons who aid or encourage other persons in the enjoyment of rights protected by § 3604. 42 U.S.C. § 3617. As Professor Schwemm points out, “a number of exclusionary zoning cases have held that a municipality’s refusal to permit a developer to build housing for minorities not only violates § 3604(a), but also unlawfully interferes with the developer and his prospective tenants under § 3617.” R. Schwemm, Housing Discrimination Law at 198 (1983). See, e.g., Metropolitan Housing Development Corporation v. Village of Arlington Heights, 558 F.2d 1283, 1288 (7th Cir.1977), cert. denied, 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772 (1978); United States v. City of Black Jack, 508 F.2d 1179, 1188 (8th Cir.1974), cert. denied, 422 U.S. 1042, 95 S.Ct. 2656, 45 L.Ed.2d 694 (1975); United States v. City of Parma, Ohio, 494 F.Supp. 1049, 1094-1101 (N.D.Ohio 1980), aff'd as modified, 661 F.2d 562 (6th Cir. 1981), cert. denied, 456 U.S. 926, 102 S.Ct. 1972, 72 L.Ed.2d 441 (1982). The developer plaintiffs’ claims under the equal protection clause of the fourteenth amendment and the Civil Rights Acts of 1866, 42 U.S.C. §§ 1981, 1982 and 1983, are, as discussed supra, subject to the prudential limitation against raising the rights of third parties. However, in the opinion of this Court the “only effective advocate” exception applies to allow the developer plaintiffs to raise the rights of their prospective black tenants. According to plaintiffs’ allegations, the" } ]

[ { "docid": "22670135", "title": "", "text": "Justice Souter delivered the opinion of the Court, except as to Part III. Title 18 U. S. C. § 924(e) (2000 ed. and Supp. II), popularly known as the Armed Career Criminal Act (ACCA), mandates a minimum 15-year prison sentence for anyone possessing a firearm after three prior convictions for serious drug offenses or violent felonies. The Act makes burglary a vio lent felony only if committed in a building or enclosed space (“generic burglary”), not in a boat or motor vehicle. In Taylor v. United States, 495 U. S. 575 (1990), we held that a court sentencing under the ACCA could look to statutory elements, charging documents, and jury instructions to determine whether an earlier conviction after trial was for generic burglary. The question here is whether a sentencing court can look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary. We hold that it may not, and that a later court determining the character of an admitted burglary is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented. I Petitioner Reginald Shepard was indicted under 18 U. S. C. § 922(g)(1), barring felons from possessing a firearm, and pleaded guilty. At sentencing the Government claimed that Shepard’s prior convictions raised his sentencing range from between 30 and 37 months (under the United States Sentencing Guidelines) to the 15-year minimum required by § 924(e), pointing to four prior convictions entered upon Shepard’s pleas of guilty under one of Massachusetts’s two burglary statutes. Whereas the Government said that each conviction represented a predicate ACCA offense of generic burglary, the District Court ruled that Taylor barred counting any of the prior convictions as predicates for the mandatory minimum. 125 F. Supp. 2d 562, 569 (Mass. 2000). In Taylor we read the listing of “burglary” as a predicate “violent felony” (in the ACCA) to refer to what we called “generic burglary,” an “unlawful or unprivileged entry into, or" } ]

[ { "docid": "16343576", "title": "", "text": "PER CURIAM. This case is before us on. remand from the United States Supreme Court for further consideration because of its recent decision in Shepard v. United States, — U.S. —, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Shepard held a sentencing court cannot consider police reports to determine whether a plea of guilty to a “non-generic” burglary statute qualifies as a violent felony under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), but is limited to considering “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” 125 S.Ct. at 1263. In this case, we affirmed the district court’s determination Junior Menteer was an armed career criminal based on admitted facts set forth in the presentence report (PSR) which established Menteer’s guilty plea to a non-generic burglary statute satisfied the generic definition of burglary. United States v. Menteer, 350 F.3d 767, 771-72 (8th Cir.2003). Specifically, the PSR stated “Menteer forcibly entered a residence, armed with a deadly weapon, with the intent of robbing the victim.” Id. at 771. We held “Menteer’s failure to object to that portion of the PSR constitutes an admission of those facts.” Id. (citing United States v. Moser, 168 F.3d 1130, 1132 (8th Cir.1999)). The concern in Shepard was the Sixth Amendment implication of having a sentencing judge “make a disputed finding of fact about what the defendant ... must have understood as the factual basis for the prior plea.” Shepard, 125 S.Ct. at 1262. This concern is not implicated when the “certainty of a generic finding lies in ... the defendant’s own admissions or accepted findings of fact confirming the factual basis for a valid plea.” Id. Since the ACCA determination in Men-teer’s case was based on his own admissions, we conclude our earlier resolution of this issue is unaffected by Shepard. Thus, we reinstate our prior opinion and again affirm Menteer’s judgment of conviction and sentence in all respects." }, { "docid": "22826878", "title": "", "text": "wrestled with, but did not fully delineate, the scope of the prior conviction exception. See 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Shepard involved an issue relating to judicial factfinding under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (the “ACCA”), which mandates a sentencing enhancement if a defendant has three prior convictions for serious controlled substance offenses or violent felonies. See Shepard, 125 S.Ct. at 1257. On solely statutory grounds, the Court held that, when the prior conviction has resulted from a guilty plea, the ACCA limits the sentencing court’s factfinding authority to the “necessarily admitted elements of the generic offense,” including “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or ... some comparable judicial record of this information.” Id. at 1263. A plurality of the Justices in Shepard suggested that the Court’s ruling was informed by “[t]he rule of reading statutes to avoid serious risks of unconstitutionality,” specifically the Sixth Amendment concerns raised by a judicial factfinding process that increases a defendant’s permissible sentence. Id. at 1262-63 (plurality opinion). Soon after Shepard was decided, in United States v. Washington, we applied the principles enunciated in Booker and Shepard, and determined that the Sixth Amendment is contravened when disputed issues of fact, “not necessarily determined in the earlier proceeding,” and which increase the defendant’s permissible sentence, are resolved by a court rather than a jury. See 404 F.3d 834, 842-43 (4th Cir.2005). In other words, we recognized that the Sixth Amendment’s prior conviction exception authorizes a sentencing court, without a jury, to look only to those sources approved by Shepard in making factual findings about a prior conviction that resulted from a guilty plea. As explained above, the sentencing court enhanced Allen’s sentence under the Guidelines’ career offender provision on the basis of its finding that he had at least two prior felony convictions for controlled substance offenses — one for his 2000 Convictions, and another for his 1995 Convictions." }, { "docid": "8988148", "title": "", "text": "Cir.2003). “To constitute clear error, we must be convinced that the sentencing court’s finding is simply not plausible or permissible in light of the entire record on appeal, remembering that we are not free to substitute our judgment for that of the district judge.” Id. We will not find clear error unless “our review of the entire record leaves us with the definite and firm conclusion that a mistake has been made.” United States v. Ary, 518 F.3d 775, 787 (10th Cir.2008). The district court had before it the following documentary evidence supporting the enhancement: (1) the affidavit of Officer Christopher Cruser (the Cruser affidavit); (2) Officer Cruser’s narrative remarks in a police report describing the events surrounding Defendant’s arrest; and (3) a Bureau of Alcohol, Tobacco and Firearms Report of Investigation (the ATF report). Defendant contends these documents could not be considered for purposes of enhancing his sentence after Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). In Shepard, the Supreme Court held that the “charging document,” the “terms of a plea agreement,” the “transcript of colloquy between judge and defendant,” or “some comparable judicial record,” is the permissible universe of evidence a court may consider in determining whether a guilty plea establishes a predicate offense for a sentencing enhancement under the Armed Career Criminal Act (ACCA). Id. at 26, 125 S.Ct. 1254; see also United States v. Romero-Hernandez, 505 F.3d 1082, 1085-86 (10th Cir.2007) (explaining application of Shepard’s “modified categorical approach” to sentencing enhancements). Although Shepard may have some application to enhancements outside the ACCA where the Guidelines require a conviction as a predicate to a sentencing enhancement, we have never applied such a stringent requirement to warrant a sentencing enhancement that merely requires certain conduct. See, e.g., United States v. Zuniga-Soto, 527 F.3d 1110, 1119-20 (10th Cir. 2008) (discussing Shepard in the context of determining whether a past conviction amounts to a “crime of violence” for purposes of U.S.S.G. § 2L1.2). Here, § 2K2.1(b)(6) only requires certain conduct to warrant an enhancement. See U.S.S.G. § 2K2.1(b)(6) (“If the defendant used or" }, { "docid": "9925651", "title": "", "text": "definition is ambiguous, a court to “go beyond the mere fact of conviction” and examine the charging papers or jury instructions to determine whether the convicting jury necessarily found all the requisite elements of an offense that would qualify for a federal sentencing enhancement. Id. at 602, 110 S.Ct. 2143; see, e.g., United States v. Kaplansky, 42 F.3d 320, 325 (6th Cir.1994) (en banc). The Court in Taylor also noted, without directly addressing the issue, that in cases where the guilty plea is to a lesser-included offense of the one charged in the original indictment, it might be “unfair” to base a sentence enhancement on the crime alleged in the original indictment. See Taylor, 495 U.S. at 601-02, 110 S.Ct. 2143. After Taylor, the courts of appeals took a variety of approaches in pleaded cases, and eventually the issue arose in the Supreme Court in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Shepard involved a guilty plea to a statutory burglary offense that embraced both generic burglary (burglary into buildings) which is subject to a federal sentence enhancement and non-generic burglary (burglary into other structures, e.g., boats or vehicles) which is not. Id. at 16-17, 125 S.Ct. 1254. The Supreme Court, casting its decision as adherence to the “heart” of Taylor, id. at 23, 125 S.Ct. 1254, confirmed that Taylor applied to convictions based on guilty pleas. Id. at 19, 125 S.Ct. 1254. It further held that in such cases, a court’s inquiry is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information. Id. at 26, 125 S.Ct. 1254 (emphasis added). Police reports and criminal complaint applications would not do. To be sure, the rulings applied not to the Sentencing Guidelines’ definition of a crime of violence but to the Armed Career Criminal Act’s definition of burglary, but faithfulness to this Circuit’s precedents mandates application of Shepard as" }, { "docid": "21305213", "title": "", "text": "SACK, Circuit Judge: This appeal presents the narrow question of whether, under the circumstances here presented, Eduardo Rosa’s 1991 New York state-court guilty plea to a charge of Robbery in the First Degree qualifies as a “violent felony” conviction under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (the “ACCA”). The district court decided that it did, and that, therefore, it was bound to impose on Rosa a mandatory minimum sentence of fifteen years’ (180 months’) imprisonment under the ACCA. We disagree. Under Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), decided shortly before the district court handed down this sentence, the district court was required to determine whether Rosa’s “earlier guilty plea necessarily admitted, and supported a conviction for,” id. at 16, 125 S.Ct. 1254, “an [ ] act of juvenile delinquency involving the use or carrying of a firearm ... that would be punishable by imprisonment for [a] term [exceeding one year] if committed by an adult,” 18 U.S.C. § 924(e)(2)(B). In doing so, the court was “limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard, 544 U.S. at 26, 125 S.Ct. 1254. No such document, at least none submitted to the district court, established that Rosa’s 1991 “guilty plea necessarily admitted, and supported a conviction for,” id. at 16, 125 S.Ct. 1254, “an [ ] act of juvenile delinquency involving the use or carrying of a firearm ... that would be punishable by imprisonment for [a] term [exceeding one year] if committed by an adult,” 18 U.S.C. § 924(e)(2)(B). We therefore vacate the sentence and remand for resen-tencing. BACKGROUND On January 28, 2004, New York State police officers, acting on a tip from a confidential informant, executed a search warrant for the basement of Eduardo Rosa’s home. There, they discovered two .45 caliber handguns, 142 rounds of ammunition, and a bullet-proof vest. Rosa was" }, { "docid": "23188573", "title": "", "text": "the INA’s treatment of aggravated felonies, the ACCA defines “violent felony,” in part, by reference to a list of exemplary offenses. See id. § 924(e)(2)(B)®. For determining whether a prior conviction subsumes a violent felony (and, thus, a predicate offense for ACCA purposes), the Supreme Court devised a categorical approach. See Taylor, 495 U.S. at 600, 110 S.Ct. 2143. This categorical approach consists of two steps. See id. at 602, 110 S.Ct. 2143. Where a violation of the statute underlying the prior conviction necessarily involves every element of an offense listed in section 924(e)(2)(B)(ii), the mere fact of conviction establishes that the putative predicate crime was a violent felony. Id. Where, however, the underlying statute spans, but is broader than, the listed offense (i.e., where it encompasses some conduct that would constitute a violent felony and some conduct that would not), the putative predicate offense qualifies as a violent felony only “where a jury was actually required to find all the elements” of the listed offense. Id. In that circumstance, a sentencing court charged with determining what the jury actually was required to find cannot retry the original case but, rather, must restrict its inquiry to the record of conviction, including the charging document and jury instructions. See id. The Court later extended the categorical approach to cases in which the prior conviction results from a guilty plea rather than from a jury verdict. See Shepard v. United States, 544 U.S. 13, 19-20, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). In rejecting the government’s contention that a sentencing court could rest its characterization of the putative predicate offense on facts contained in a police report, the Justices reiterated that the appropriate inquiry is “confined to records of the convicting court.” Id. at 23, 125 S.Ct. 1254. That inquiry thus includes “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Id. at 16, 125 S.Ct. 1254. In other words, a sentencing court may conclude that a guilty plea subsumed a violent felony only when" }, { "docid": "23251506", "title": "", "text": "court showed the “burglaries took place on different days at different locations” and that defendant Richardson had “not contested the accuracy of the police reports.” Id. at 1300. Thus, the Court concluded that the burglaries were committed on occasions different from one another for purposes of the ACCA. Id. D. Shepard’s Modified Categorical Approach In 2005, the Supreme Court issued Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), explaining further the exception to the categorical approach recognized in Taylor and providing additional guidance about what material sentencing courts may use to determine the nature of a defendant’s prior felony convictions for purposes of the § 924(e)(1) ACCA enhancement. See United States v. Aguilar-Ortiz, 450 F.3d 1271, 1273 (11th Cir.2006). The Shepard Court concluded that, in determining whether a prior burglary was a “violent felony,” the district court (1) may not consider police reports or complaint applications but (2) may examine “the terms of the charging document, the terms of the plea agreement or transcript of the colloquy between the judge and defendant in which the factual basis for the plea was confirmed by the defendant, or [] some comparable judicial record of this information.” Shepard, 544 U.S. at 23-26, 125 5.Ct. at 1261-63. Subsequently, the Supreme Court has explained that Shepard’s “modified categorical approach” permits a sentencing court “to determine which statutory phrase was the basis for the conviction by consulting the trial record- — -including charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms.” Johnson v. United States, — U.S. -, 130 S.Ct. 1265, -, — L.Ed.2d - (2010). Three aspects of Shepard are particularly important to this case. First, the Supreme Court in Shepard observed that the government had argued for a “wider evidentiary cast,” looking to police reports for example, but expressly rejected that argument. Shepard, 544 U.S. at 21, 125 S.Ct. at 1260. Second, Shepard was decided in 2005 and stressed (1) the significant developments in the law since Taylor was decided in 1990," }, { "docid": "11896770", "title": "", "text": "U.S. 575, 601, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and extended to plea-based convictions in Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), for determining whether a pri- or conviction constitutes a “violent felony” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2), has been applied by this court to the parallel determination of whether a prior conviction constitutes a “crime of violence” under USSG § 4B1.2(a). See, e.g., United States v. Arnold, 58 F.3d 1117, 1121 (6th Cir.1995); United States v. Foreman, 436 F.3d 638, 641 (6th Cir.2006). Under this categorical approach, the court must look only to the fact of conviction and the statutory definition — not the facts underlying the offense — to determine whether that definition supports a conclusion that the conviction was for a crime of violence. United States v. Armstead, 467 F.3d 943, 947 (6th Cir.2006) (discussing Taylor and Shepard). “One of the policies animating the Court’s adoption of this approach was to avoid ‘the practical difficulties and potential unfairness’ of permitting a sentencing court to relitigate the facts and delve into the details of a prior conviction.” Id. (quoting Taylor, 495 U.S. at 601, 110 S.Ct. 2143). Taylor recognized a “narrow exception” when the statutory definition is ambiguous, under which the court may examine the charging papers or jury instructions to determine whether the convicting jury necessarily found all the requisite elements of an offense that would qualify as a “violent felony” under the ACCA. Id. at 947. In addressing plea-based convictions in Shepard, the Court limited examination under this exception to “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard, 544 U.S. at 26, 125 S.Ct. 1254. In doing so, the Court specifically rejected the government’s call to permit consideration of police reports and criminal complaint applications to support a finding that the guilty plea could only have" }, { "docid": "10600727", "title": "", "text": "cases, not the actual judgments against him. It is unclear why Peters thinks the judgments are necessary — he did not dispute that he was convicted of the two offenses. Even if the presentence report referenced only the charging documents, as Peters asserts, that (coupled with his admission that the convictions were his) would be sufficient. Shepard — which dealt with mandatory penalty increases for recidivists under the Armed Career Criminal Act, but which also applies to guidelines recidivist enhancements, United States v. McGee, 408 F.3d 966, 988 (7th Cir.2005) — -limited the universe of material sentencing courts may consider when determining whether a conviction obtained by guilty plea qualifies as a violent felony. Shepard, 544 U.S. at 16, 125 S.Ct. 1254. Shepard held that “a later court determining the character of an admitted [prior conviction] is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factfinding by the trial judge to which the defendant assented,” or other “comparable judicial record[s]” of the prior conviction. Id. at 16, 125 S.Ct. 1254. Charging documents are specifically listed within this universe of material the sentencing judge may consider. The court does not need the actual physical charging document, either; a presentence report that recounts the charging document’s terms will suffice. Id. at 26, 125 S.Ct. 1254 (limiting court’s inquiry to, among other things, “the terms of the charging document” (emphasis added)). In any event, Peters’s presentence report does reference judgments. It states that Peters “was convicted of substantial battery-intended bodily harm in Case No. 96CF218 on 2/21/97 and of battery, habitual criminality in Case No. 99CM574 on 2/16/00,” and in an addendum notes that the report writer examined only “the judgment and criminal complaint to determine if the underlying offenses were crimes of violence.” The district court’s reliance on the information in the presentence report did not run afoul of Shepard. Accordingly, the only question left is whether the court correctly concluded that the two battery convictions were crimes of violence. As we have noted, whether a pri- or conviction was for" }, { "docid": "21415646", "title": "", "text": "predicate felony under § 924(e). United States v. Smith, 390 F.3d 661, 663 (9th Cir.2004), amended by 405 F.3d 726 (9th Cir.), cert. denied, 546 U.S. 905, 126 S.Ct. 252, 163 L.Ed.2d 230 (2005). To determine whether a prior conviction qualifies as a violent felony under 18 U.S.C. § 924(e), we apply the “categorical approach” outlined by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under that approach, we initially evaluate whether a defendant’s prior conviction corresponds to an offense enumerated as a violent felony in § 924(e)(2) by examining only “the fact of conviction and the statutory definition of the prior offense.” Id. at 602, 110 S.Ct. 2143. Where the statute of conviction is overinclusive, criminalizing some conduct that would qualify as a predicate offense and other conduct that would not, Taylor authorizes courts to “go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of [the enumerated offense].” Id. In such cases, we employ the “modified categorical approach” and examine the charging paper and jury instructions to determine whether the defendant was necessarily convicted of an offense corresponding to one listed in § 924(e)(2). Id. In Shepard v. United States, 544 U.S. 13, 19, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), the Court affirmed that the Taylor categorical and modified categorical approaches apply to prior convictions obtained through guilty pleas. The Court held that in applying the modified categorical approach to pleaded convictions, courts were limited to examining “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge hnd defendant in which the factual basis for the plea was confirmed by the defendant, or ... some comparable judicial record of this information.” Id. at 26, 125 S.Ct. 1254. By contrast, courts may not review police reports, complaint applications, and similar documents. Id. at 16, 21-23, 125 S.Ct. 1254. A. Sixth Amendment Challenge to Judicial Categorization of Prior Offenses as Violent Felonies Preliminarily, Jennings contends that there" }, { "docid": "23244936", "title": "", "text": "person offering the bridge or the drug does not have the intent to distribute or sell the item. As we have held, “a crime not involving the men tal culpability to commit a substantive narcotics offense [does not] serve as a predicate ‘controlled substance offense’ ” under the Guidelines. United States v. Liranzo, 944 F.2d 73, 78-79 (2d Cir.1991). Thus, the Connecticut statute, by criminalizing a mere offer to sell, criminalizes more conduct than falls within the federal definition of a controlled substance offense. II. Modified Categorical Inquiry Where, as here, the statute of conviction is overly inclusive, we address whether the government has shown that the plea “necessarily” rested on the fact identifying the conviction as a predicate offense. Shepard, 544 U.S. at 21, 125 5.Ct. 1254. In conducting this modified categorical inquiry, we are constrained by “Taylor’s demand for certainty.” Id. Accordingly, in the context of a conviction based on a plea, the inquiry is “limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Id. at 26, 125 S.Ct. 1254. The determinative issue is whether the judicial record of the state conviction established with “certainty” that the guilty plea “necessarily admitted elements of the [predicate] offense.” Id. at 25, 26, 125 S.Ct. 1254; see Rosa, 507 F.3d at 161 (applying “Shepard’s requirement that district courts limit their consideration to particular documents that can identify the underlying facts of a prior conviction with certainty ” (emphasis added)). We apply Shepard in determining whether a conviction qualified as a “controlled substance offense” for the purpose of a Guidelines sentencing enhancement. See Green, 480 F.3d at 632. The Shepard Court identified two types of proof, relevant here, that might suffice to establish that a plea “necessarily” rested on the elements of a predicate offense: (i) proof that the defendant admitted to predicate conduct when confirming the factual basis for a valid plea; (ii) proof that the" }, { "docid": "8236970", "title": "", "text": "n. 11; see 18 U.S.C. § 3553(a)(2)(C). The dissent contends that the district court, by considering the conduct underlying Marsh’s vacated resisting arrest convictions, ran afoul of both Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) and Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007). We reject that contention, as neither case applies to these circumstances. Cunningham held that California’s sentencing regime violated defendants’ Sixth and Fourteenth Amendment right to a jury trial by allowing a judge to find facts that could lead to a sentence in excess of a statutory minimum. 549 U.S. at 274, 127 S.Ct. 856. Marsh was facing a statutory maximum life sentence, 21 U.S.C. § 841(b)(1)(B), and thus Cunningham is not implicated. In Shepard, the Court limited the range of information upon which a sentencing judge may rely in determining whether a defendant’s prior convictions were “violent felonies” within the meaning of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). 544 U.S. at 16, 125 S.Ct. 1254. We have never extended Shepard’s holding beyond the realm of the ACCA or the Career Offender Guideline, U.S.S.G. § 4B1.2, and that case is not implicated here, either. Indeed, in Hardy we explicitly approved a district court’s consideration of charged conduct underlying vacated convictions in connection with U.S.S.G. § 4A1.3, as the district court did here. And where, as here, the defendant did not contest the reliability of the information, the district court was free to credit the descriptions contained in the PSR. Hardy, 99 F.3d at 1251. The district court also noted that the sentence would provide treatment for Marsh’s mental health, an issue brought to the fore by Marsh and which played a significant role in the sentencing process, 18 U.S.C. § 3553(a)(2)(D). Finally, the court explicitly stated that the nearly twenty-year total term of imprisonment and supervised release was “not greater than necessary to achieve the purposes of sentencing.” Marsh, 486 F.Supp.2d at 159; 18 U.S.C. § 3553(a). We have previously stated the unremarkable proposition that “[sjections 3553(a)(1) and 3553(a)(2)(c) invite the" }, { "docid": "23251507", "title": "", "text": "judge and defendant in which the factual basis for the plea was confirmed by the defendant, or [] some comparable judicial record of this information.” Shepard, 544 U.S. at 23-26, 125 5.Ct. at 1261-63. Subsequently, the Supreme Court has explained that Shepard’s “modified categorical approach” permits a sentencing court “to determine which statutory phrase was the basis for the conviction by consulting the trial record- — -including charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms.” Johnson v. United States, — U.S. -, 130 S.Ct. 1265, -, — L.Ed.2d - (2010). Three aspects of Shepard are particularly important to this case. First, the Supreme Court in Shepard observed that the government had argued for a “wider evidentiary cast,” looking to police reports for example, but expressly rejected that argument. Shepard, 544 U.S. at 21, 125 S.Ct. at 1260. Second, Shepard was decided in 2005 and stressed (1) the significant developments in the law since Taylor was decided in 1990, such as the 1999 Jones and the 2000 Apprendi decisions, and (2) the constitutional concerns underlying Jones and Apprendi that, except for the fact of a prior conviction, the Sixth Amendment and Fourteenth Amendment guarantee a jury’s finding of a disputed fact about a prior conviction where that disputed fact is essential to increase the statutory maximum of a potential sentence. Shepard, 544 U.S. at 24-26, 125 S.Ct. at 1262-63. Third, in part based on the intervening Jones and Apprendi decisions, the Supreme Court in Shepard permitted sentencing courts to determine the nature of a prior conviction based only on the list of judicial records in Shepard or a fact to which the defendant assented (the “Shepard-approved sources”) and precluded the sentencing court’s use of police reports to establish the nature of a prior conviction for purposes of the § 924(e)(1) enhancement. Id. at 26, 125 S.Ct. at 1263. III. SHEPARD’S IMPACT ON RICHARDSON We acknowledge that Shepard involved the violent felony phrase in § 924(e) and did not address the different occasions phrase that" }, { "docid": "9925652", "title": "", "text": "into buildings) which is subject to a federal sentence enhancement and non-generic burglary (burglary into other structures, e.g., boats or vehicles) which is not. Id. at 16-17, 125 S.Ct. 1254. The Supreme Court, casting its decision as adherence to the “heart” of Taylor, id. at 23, 125 S.Ct. 1254, confirmed that Taylor applied to convictions based on guilty pleas. Id. at 19, 125 S.Ct. 1254. It further held that in such cases, a court’s inquiry is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information. Id. at 26, 125 S.Ct. 1254 (emphasis added). Police reports and criminal complaint applications would not do. To be sure, the rulings applied not to the Sentencing Guidelines’ definition of a crime of violence but to the Armed Career Criminal Act’s definition of burglary, but faithfulness to this Circuit’s precedents mandates application of Shepard as well as Taylor to § 4B1.2 of the Guidelines. See United States v. Foreman, 436 F.3d 638, 641 (6th Cir.2006). So since Shepard, to determine whether a prior conviction pursuant to a guilty plea constitutes a crime of violence, the sentencing court must, first, decide whether the statutory definition, by itself, supports a conclusion that the defendant was convicted of a crime of violence. If the statutory definition embraces both violent and non-violent crimes or is otherwise ambiguous, the court, second, may look to the “charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information” to determine whether the violent or non-violent aspect of the statute was violated. Shepard, 544 U.S. at 26, 125 S.Ct. 1254; see United States v. Galloway, 439 F.3d 320, 323 (6th Cir.2006); Foreman, 436 F.3d at 641. 2. Application of the Categorical Approach First we consider whether the statutory description of attempted" }, { "docid": "22826877", "title": "", "text": "507 U.S. at 732, 113 S.Ct. 1770) (internal quotation marks and alterations omitted). 1. In its Booker decision, in early 2005, the Supreme Court recognized that the Sixth Amendment is contravened when a court finds “[a]ny fact (other than a prior conviction) which,” under mandatory sentencing guidelines, “is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict.” See 543 U.S. at 244, 125 S.Ct. 738. The facts admitted by Al len in his guilty plea in the district court would normally have authorized a Guidelines sentence of no more than thirty-seven months; as a career offender, Allen received a sentence of 156 months. Because the court’s application of the career offender provision depended upon its factual findings, its decision to treat Allen as a career offender was, unless its factfinding fell within the “prior conviction exception” recognized in Booker, plainly erroneous. See United States v. Hughes, 401 F.3d 540, 547-48 (4th Cir.2005). Subsequent to Booker, in Shepard v. United States, the Court wrestled with, but did not fully delineate, the scope of the prior conviction exception. See 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Shepard involved an issue relating to judicial factfinding under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (the “ACCA”), which mandates a sentencing enhancement if a defendant has three prior convictions for serious controlled substance offenses or violent felonies. See Shepard, 125 S.Ct. at 1257. On solely statutory grounds, the Court held that, when the prior conviction has resulted from a guilty plea, the ACCA limits the sentencing court’s factfinding authority to the “necessarily admitted elements of the generic offense,” including “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or ... some comparable judicial record of this information.” Id. at 1263. A plurality of the Justices in Shepard suggested that the Court’s ruling was informed by “[t]he rule of reading statutes to avoid serious" }, { "docid": "22295608", "title": "", "text": "“committed on occasions different from one another,” the mandatory minimum prison sentence is fifteen years. 18 U.S.C. § 924(e)(1). The presentence investigation report (PSR) prepared by the probation office recommended sentencing Canty as an armed career criminal. The PSR listed all of Canty’s prior convictions but did not specify which of these convictions were violent felonies or serious drug offenses under the ACCA. At the sentencing hearing, the Government made no objections to the PSR and pursued an ACCA sentence. Canty objected to the PSR because it included facts and circumstances of Canty’s prior crimes taken from arrest and booking reports. Canty argued that because arrest and booking reports are not documents the court may rely upon to determine whether a defendant’s prior crimes are proper predicate convictions for application of the ACCA, the PSR should not include facts taken from those reports. In support of this argument, Canty cited Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), which limits a sentencing court to examination of the charging document, the terms of a plea agreement, the transcript of a plea colloquy in which the factual basis for the plea was confirmed by the defendant, or “some comparable judicial record of this information” to determine if the crime to which a defendant has pleaded guilty fits the definitions of crimes upon which an ACCA enhancement can rest. Shepard, 544 U.S. at 26,125 S.Ct. at 1263. The Government responded to Canty’s Shepard objection by adopting the addendum to the PSR. The relevant part of that addendum states: It is the [Probation] Office’s understanding of Shepard, that the case limits the sentencing court to consideration of [the charging document, terms of a plea agreement, the transcript of a plea colloquy or other such documentation] when the facts from the police report are used to support a conviction; strictly speaking, in Shepard, a conviction relied upon to enhance the defendant’s sentence pursuant to the Armed Career Criminal Act. The holding'in that case does not appear to be applicable to this defendant. The affected paragraphs are reported for the" }, { "docid": "22225775", "title": "", "text": "plea necessarily admitted, and was the basis for, a predicate conviction for an enhanced sentence. Shepard, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205. The government argued in Shepard that a sentencing court may properly consider police reports and complaint applications in determining whether a felon has sustained predicate convictions for violent felonies or drug offenses for purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e) (2000 ed. and Supp. II). Shepard, 544 U.S. at 21, 125 S.Ct. at 1260. The Shepard Court characterized the government’s position as an effort to create “a wider evidentiary cast ... going beyond conclusive records made or used in adjudicating guilt and looking to documents submitted to lower courts even prior to charges,” id., and rejected the government’s “call to ease away from the Taylor [holding].” Id. at 23, 125 S.Ct. 1254. In so doing, the Court observed that “Taylor is clear that any enquiry beyond statute and charging document must be narrowly restricted to implement the object of the statute and avoid evidentiary disputes.” Id. at 23, 125 S.Ct. 1254 n. 4. In essence, Shepard rejected the contention that the police report could be consulted because it was “sufficiently reliable” and the defendant had never disputed its accuracy. Id. at 18-19, 125 S.Ct. 1254. The Court declared that under a nongeneric statute, certainty that the defendant had pleaded guilty to the generic offense may come from either (1) “a charging document that narrows the charge to generic limits,” or (2) “the defendant’s own admissions or accepted findings of fact confirming the factual basis for a valid plea.” Id. at 25, 125 S.Ct. 1254. Shepard, in essence, affirms our holdings that allow the district court in a modified categorical analysis to consider the charging document, plea agreement, and plea colloquy. For example, in Hernandez-Valdovinos, 352 F.3d at 1248, we upheld the district court’s examination of the indictment, plea agreement, minutes from the change of plea hearing, and the judgment. See also Bonat, 106 F.3d at 1476-77 (allowing the district court to consider the information, the judgment, and the plea transcript); United" }, { "docid": "3494215", "title": "", "text": "a crime of violence for purposes of § 4B1.1. See United States v. Almenas, 553 F.3d 27, 33-34 (1st Cir.2009); see also United States v. Weekes, 611 F.3d 68, 72-73 (1st Cir.2010) (holding that a Massachusetts conviction for resisting arrest qualifies as a predicate conviction under the Armed Career Criminal Act, 18 U.S.C. § 924(e)). Davis’s 2006 adult conviction for resisting arrest falls squarely within the category of crimes of violence that may serve as predicate offenses for purposes of career offender status. The only item left in Davis’s criminal history which could act as a qualifier for career offender status is his 2006 adult conviction for assault and battery. Whether this conviction may serve as his second predicate offense merits careful consideration due to recent changes in our circuit precedent. To determine whether a defendant’s prior offense qualifies as a crime of violence under § 4B1.1, a sentencing court must employ a categorical approach, examining the legal definition of the crime and not the defendant’s particular conduct in committing the offense. Holloway, 630 F.3d at 256 (citing Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008)). The first step in undertaking the categorical approach is to identify the offense of conviction. Id. (citing United States v. Giggey, 589 F.3d 38, 41 (1st Cir.2009)). Where the crime of conviction covers multiple offenses, some of which are considered crimes of violence and some of which are not, a court must examine certain approved documents to determine the offense of which the defendant was actually convicted. Id. at 257 (citing Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). A court may look to “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard, 544 U.S. at 26, 125 S.Ct. 1254. A court may not, however, rely on police reports. Id. at 21-23, 125 S.Ct. 1254. If," }, { "docid": "5924645", "title": "", "text": "to determine the nature of a prior offense was confirmed by the Supreme Court in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The decision also explicitly stated what documents can be used by the district court to characterize a prior felony for purposes of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Shepard was convicted of burglary in Massachusetts, and whether his prior conviction was a violent felony, as defined in the ACCA, became an issue. Under the ACCA, “generic burglary” is a predicate violent felony, defined by the Supreme Court as the “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). However, some states define burglary more broadly, including, for instance, breaking and entering a car; a burglary statute with such a broader definition is referred to by the Supreme Court as “non-generic burglary.” Shepard, 125 S.Ct. at 1257. If a defendant is convicted of non-generic burglary, the conviction may or may not qualify as a predicate violent felony under the ACCA. The question thus became what sources may a district court consult to determine whether a state court conviction for non-generic burglary qualified as a predicate violent felony. In Shepard, the First Circuit concluded that a district court could consider complaint applications and police reports in determining whether a defendant’s prior conviction for burglary qualified as a violent felony under the ACCA. Shepard, 125 S.Ct. at 1258-59. The Supreme Court reversed, stating “that a later court determining the character of an admitted burglary is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Id. at 1257. By extension, Shepard sets out what a district court may consider in determining whether a defendant has committed a “controlled substance offense” under sentencing guideline 4B1.1. Galloway was convicted of “attempt to commit a felony,” which from the" }, { "docid": "1955372", "title": "", "text": "the particular facts underlying those convictions.” Id. at 600, 110 S.Ct. 2143. Unlike the prior convictions in Taylor, which followed jury trials, the pri- or convictions at issue in Shepard were the result of guilty pleas. The Court found “Taylor’s reasoning controls the identification of ... convictions following pleas, as well as convictions on verdicts.” Shepard, 125 S.Ct. at 1259. As a consequence, when determining whether a prior conviction resulting from a guilty plea is a violent felony for purposes of the ACCA, a court is limited to an examination of the language of the statute of conviction, “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant ..., or to some comparable judicial record of this information.” Id. at 1262. In addition, the ACCA only applies if a person has “three previous convictions by any court ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another.... ” 18 U.S.C. § 924(e). Taylor does not dispute his prior convictions are violent felonies. Instead, he argues the record fails to support the district court’s conclusion that two of his three prior convictions arose from a different criminal episode under § 924(e). If the record does not show that his prior armed robberies were committed on separate occasions, Taylor claims that Shepard and Taylor compel the court to disregard the ACCA enhancement. There is yet very little post-Shepard guidance in the case law. Prior to Shepard, we held that the ACCA enhancement “was intended to reach multiple criminal episodes distinct in time” and that a court could make this determination under the Guidelines. United States v. Tisdale, 921 F.2d 1095, 1098-99 (10th Cir.1990) (finding three different burglaries in the same building on the same day sufficiently distinct). The Seventh Circuit, however, recently concluded that “whether prior crimes are part of a common scheme is [ ] a fact question” that a court must resolve after Shepard by consideration of a sufficient “judicial record” from the prior proceeding. United States v. Ngo, 406 F.3d" } ]

[ { "docid": "22547864", "title": "", "text": "of 1985. We noted that, in addition to a court order to apply for a permit, the FWPCA could be enforced through fines and criminal penalties, 33 U. S. C. §§ 1319(c) and (d). 456 U. S., at 314. The Ninth Circuit believed that the absence of such enforcement provisions in ANILCA distinguished the FWPCA and Romero-Barcelo. 774 F. 2d, at 1426, n. 2. It stated that the injunctive relief it granted was the only means of insuring compliance under § 810. The Court of Appeals was incorrect. Here, as in Romero-Barcelo, compliance could be obtained through the simple means of an order to the responsible federal official to comply. The Secretary had not complied with § 810 only because he interpreted ANILCA not to apply to the OCS. We distinguished TV A v. Hill, 437 U. S. 153 (1978), in which we had held that Congress, in the Endangered Species Act of 1973, 87 Stat. 884, as amended, 16 U. S. C. § 1531 et seq. (1982 ed. and Supp. Ill), had foreclosed the traditional discretion possessed by an equity court and had required the District Court to enjoin completion of the Tellieo Dam in order to preserve the snail darter, an endangered species. That statute contains a flat ban on destruction of critical habitats of endangered species and it was conceded that completion of the dam would destroy the critical habitat of the snail darter. We stated: “Refusal to enjoin the action would have ignored the ‘explicit provisions of the Endangered Species Act.’ 437 U. S., at 173. Congress, it appeared to us, had chosen the snail darter over the dam. The purpose and language of the statute [not the bare fact of a statutory violation] limited the remedies available to the District Court; only an injunction could vindicate the objectives of the Act.” 456 U. S., at 314. The Ninth Circuit erroneously relied on TVA v. Hill. 774 F. 2d, at 1426, n. 2. It is clear that this case is similarly distinguishable from Hill. Implicit in this finding was the finding that the lease-sale stage had" } ]

[ { "docid": "23262741", "title": "", "text": "equitable discretion. Id. This traditional test for preliminary injunctions, however, is not the test for injunctions under the Endangered Species Act. Marsh, 816 F.2d at 1383 (citing Tennessee Valley Auth. v. Hill, 437 U.S. 153, 174, 98 S.Ct. 2279, 2291, 57 L.Ed.2d 117 (1978)); Friends of the Earth v. United States Navy, 841 F.2d 927, 933 (9th Cir.1988). In cases involving the ESA, Congress removed from the courts their traditional equitable discretion in injunction proceedings of balancing the parties’ competing interests. Friends of the Earth, 841 F.2d at 933 (quoting Marsh, 816 F.2d at 1383). The “language, history, and structure” of the ESA demonstrates Congress’ determination that the balance of hardships and the public interest tips heavily in favor of protected species. TVA, 437 U.S. at 174, 98 S.Ct. at 2292; Friends of the Earth, 841 F.2d at 933; Marsh, 816 F.2d at 1383. Nevertheless, these cases do not stand for the proposition that courts no longer must look at the likelihood of future harm before deciding whether to grant an injunction under the ESA. Federal courts are not obligated to grant an injunction for every violation of the law. TVA, 437 U.S. at 193, 98 S.Ct. at 2301. The plaintiff must make a showing that a violation of the ESA is at least likely in the future. Cf Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 545, 107 S.Ct. 1396, 1404, 94 L.Ed.2d 542 (1987) (in NEPA case, if injury to the environment “is sufficiently likely, [ ] the balance of harms will usually favor the issuance of an injunction”) (emphasis added). B. Likelihood of Future Harm NWF alleges that BN will continue to take grizzly bears in violation of the ESA. To prevail, NWF must prove that there is a reasonable likelihood of future violations of the ESA; namely, of future harm to the grizzlies of northwestern Montana from grain spills. The district court found that NWF had failed to show such a likelihood. That finding is supported by the evidence. It is undisputed that the operation of a modem railroad in bear country produces some" }, { "docid": "21391907", "title": "", "text": "513, 533 (9th Cir.2010). Although we determined in both cases that the ESA procedural violation warranted injunctive relief pending compli- anee with the ESA, we did so without discussing Winter and Monsanto's impact on Thomas’s presumption of irreparable harm. PREGERSON, Circuit Judge, concurring in part and dissenting in part: Respectfully, I dissent from Section VI of the majority opinion which makes it harder to protect the threatened Canada Lynx and its critical habitat, and puts the species at increased risk. I do not agree with the majority that Thomas v. Peterson, 753 F.2d 754 (9th Cir.1985) (“Thomas ”), should be put into the shredder by inferring that Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), and Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010), implicitly “undermine the theoretical foundation for our prior rulings on injunctive relief in Thomas and its progeny.” Maj. op. at 1090. I do not read Winter and Monsanto as casting a dark shadow on the ESA’s legislative purpose and our Ninth Circuit precedent. Winter and Monsanto are not “clearly irreconcilable” with Thomas as required for a three-judge panel to overturn settled Ninth Circuit case law. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003). Winter and Monsanto focus on NEPA’s — not the ESA’s — standard for in-junctive relief. Winter and Monsanto do not address the ESA, which has a unique purpose and history, and still shines as the “most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” Babbitt v. Sweet Home Chapter of Cmtys. for a Great Oregon, 515 U.S. 687, 698, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995). The Supreme Court has carefully considered the ESA’s purpose and text in terms of a court’s equitable powers when faced with an ESA violation. See TVA v. Hill, 437 U.S. 153, 173, 193-95, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (finding that it was the plain intent of Congress in enacting the ESA to halt and reverse the trend towards species extinction, whatever the" }, { "docid": "12730172", "title": "", "text": "injunctive relief under the ESA. See TVA v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978); National Wildlife Federation v. Burlington Northern R.R., 23 F.3d 1508, 1511 (9th Cir.1994); Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir.1987). Under the ESA, Congress has “foreclosed the exercise of the usual discretion possessed by a court of equity.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). The “language, history, and structure” of the ESA demonstrates “beyond doubt that Congress intended endangered species to be afforded the highest of priorities.” TVA v. Hill, 437 U.S. 153, 174, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). Under the ESA, the balance of the hardships has already been struck in favor of endangered species. See id. at 194, 98 S.Ct. 2279. Moreover, where injury to an endangered species is threatened, legal remedies are necessarily inadequate. See Weinberger, 456 U.S. at 314, 102 S.Ct. 1798 (only injunctive relief can vindicate the objectives of the ESA to preserve endangered species). See also Amoco Prod. Co. v. Cambell, 480 U.S. 531, 545, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) (environmental injury by its nature can seldom be remedied by money damages). Nevertheless, these cases do not obviate the need to assess the potential threat of injury to a listed species before deciding whether to grant an injunction under the ESA. See Burlington Northern, 23 F.3d at 1511. Federal courts are not obligated to grant an injunction for every violation of the law. Hill, 437 U.S. at 193, 98 S.Ct. 2279. In order to be entitled to injunctive relief, the plaintiff “must make a showing that a violation of the ESA is at least likely in the future.” Burlington Northern, 23 F.3d at 1511. Accordingly, injunctive relief under the ESA is generally mandated where the moving party 1) has had or can likely show “success on the merits,” and 2) makes the requisite showing of “irreparable injury.” 1. Success on the Merits It is undisputed that plaintiffs have had success on the merits. As detailed in this Court’s recent" }, { "docid": "22898731", "title": "", "text": "1047 (9th Cir.1998), we review the rulings of law relied upon by the district court in awarding injunctive relief de novo. Hilao v. Estate of Marcos, 95 F.3d 848, 851 (9th Cir.1996). The APA provides the judicial standard of review in this case. Envtl. Prot. Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073, 1078 (9th Cir.2001). “Under the APA, a court may set aside an agency action if the court determines that action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law or without observance of procedure required by law.” Id. (citations and internal quotation marks omitted). As discussed above, Congress imposed a twelve-month deadline for final determinations under the ESA. “Congress intended the petitioning process to interrupt [ ] the department’s priority system by requiring immediate review.” Norton, 254 F.3d at 840 (citation, internal quotation marks and emphasis omitted). The Service’s failure to comply with the twelve-month deadline is not in accordance with the ESA, the governing law. Appellees correctly assert that a statutory violation does not always lead to the automatic issuance of an injunction. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). However, a review of Supreme Court precedent reveals that, when federal statutes are violated, the test for determining if equitable relief is appropriate is whether an injunction is necessary to effectuate the congressional purpose behind the statute. See TVA v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). In TVA the Supreme Court examined a violation of Section 7 of the ESA and did not balance the equities. Id. at 193-95, 98 S.Ct. 2279. Instead, the Court ruled that effectuating Congress’ clear intent required issuance of an injunction, regardless of the equities involved. Id. Similarly, in Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir.1987), we noted: In Congress’s view, projects that jeopardized the continued existence of endangered species threatened incalculable harm: accordingly, it decided that the balance of hardships and the public interest tip heavily in favor of endangered species. We may not use equity’s scales" }, { "docid": "22974295", "title": "", "text": "equitable discretion. Los Angeles Memorial Coliseum Comm’n v. National Football League, 634 F.2d 1197, 1200-01 (9th Cir.1980). The district court applied this test in denying the Sierra Club’s motion for injunctive relief. This is not the test for injunctions under the Endangered Species Act. In TVA v. Hill, 437 U.S. 153, 173, 193-95, 98 S.Ct. 2279, 2291, 2301-02, 57 L.Ed.2d 117 (1978), the Supreme Court held that Congress had explicitly foreclosed the exercise of traditional equitable discretion by courts faced with a violation of section 7 of the ESA. At the time of that decision, section 7 commanded “all federal agencies ‘to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence’ of an endangered species.” 437 U.S. at 173, 98 S.Ct. at 2291 (quoting 16 U.S.C. § 1536 (1976); emphasis supplied by the Court). Here we are urged to view the Endangered Species Act “reasonably,” and hence shape a remedy “that accords with some modicum of common sense and the public weal.” But is that our function? We have no expert knowledge on the subject of endangered species, much less do we have a mandate from the people to strike a balance of equities on the side of the Tellico Dam. Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities, thereby adopting a policy which it described as “institutionalized caution.” Hill, 437 U.S. at 194, 98 S.Ct. at 2302 (citation to dissent omitted). The Court noted that the “language, history, and structure” of the act “indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities.” Id. at 174, 98 S.Ct. at 2297. Congress considered and rejected language that would have permitted an agency to weigh the preservation of species against the agency’s primary mission. Id. at 181-82, 98 S.Ct. at 2295-96. In Congress’s view, projects that jeopardized the continued existence of endangered species threatened incalculable harm: accordingly, it decided that the balance of hardships and the public interest tip" }, { "docid": "11500738", "title": "", "text": "balancing of the BiOp’s threats of harm to humans, health, safety, and protection of affected communities. No case, including TVA v. Hill, which concerned the competing economic interest in the operation of a hydro-electric project and prohibited federal courts from balancing the loss of funds spent on that project against the loss of an endangered species, expressly addresses whether the ESA precludes balancing of harms to humans and the human environment under the circumstances presented here. 67. This case involves both harm to threatened species and to humans and their environment. Congress has not nor does TVA v. Hill elevate species protection over the health and safety of humans. (2) Balancing the Harms under NEPA. 68. Although it is undisputed that all harms may be considered in evaluating a claim for injunctive relief under NEPA, an injunction should not issue if enjoining such government action would result in more harm to the environment than denying injunctive relief. Save Our Ecosystems, 747 F.2d at 1250. E. The Public Interest. 69. In adopting the ESA, Congress explicitly found that all threatened and endangered species “are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people.” 16 U.S.C. 1531(a)(3). The ESA advances a Congressional policy to “halt and reverse the trend toward species extinction, whatever the cost.” TVA v. Hill, 437 U.S. at 184, 98 S.Ct. 2279. 70. The public policy underlying NEPA favors protecting the balance between humans and the environment. See 42 U.S.C. 4321 (declaring a national policy to “encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; [and] to enrich the understanding of the ecological systems and natural resources important to the Nation....”). 71. If both these objectives can be realized by astute management, it is the government’s obligation to do so. 72. It is in the public interest that relief be granted to Plaintiffs, who represent a substantial population of water users in California, to enhance the water supply to reduce" }, { "docid": "9500399", "title": "", "text": "finding of fact. See Oakland Tribune, Inc. v. Chronicle Publishing Co., 762 F.2d 1374, 1376 (9th Cir.1985); Sierra Club v. Marsh, 816 F.2d 1376, 1381-81 (9th Cir. 1987). The Marsh case is particularly instructive here, because in that case the Ninth Circuit addressed preliminary injunctions in the context of the ESA. In Marsh, the court first laid out the traditional requirements for a preliminary injunction. These requirements are “(1) a likelihood of success on the merits and the possibility of irreparable injury or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in favor of the party seeking relief.” Sierra Club v. Marsh, 816 F.2d at 1382. The court then declared: This is not the test for injunctions under the Endangered Species Act. In TVA v. Hill, 437 U.S. 153, 173, 193-95, 98 S.Ct. 2279, 2291, 2301-02, 57 L.Ed.2d 117 (1978), the Supreme Court held that Congress had explicitly foreclosed the exercise of traditional equitable discretion by courts faced with a violation of section 7 of the ESA____ Congress considered and rejected language that would have permitted an agency to weigh the preservation of species against the agency’s primary mission---- In Congress’s view, projects that jeopardized the continued existence of endangered species threatened incalculable harm: accordingly, it decided that the balance of hardships and the public interest tip heavily in favor of endangered species .... We may not use equity’s scales to strike a different balance. Id. at 1383 (emphasis added) (citations omitted). It is worth noting the specific language of § 7 which provides as follows: Each Federal agency shall ... insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined ... to be critical — 16 U.S.C.S. § 1536(a)(2) (Law.Co-op.1984). In interpreting this provision, the Supreme Court has declared that “[o]ne would be hard pressed to find a statutory provision" }, { "docid": "23106720", "title": "", "text": "of the agencies’ primary goals. In construing a statute, this court first looks to the plain meaning of the language in question. United States v. Hurt, 795 F.2d 765, 770 (9th Cir.1986), amended, 808 F.2d 707 (9th Cir.), cert. denied, 484 U.S. 816, 108 S.Ct. 69, 98 L.Ed.2d 33 (1987) (citing North Dakota v. United States, 460 U.S. 300, 312, 103 S.Ct. 1095, 1102, 75 L.Ed.2d 77 (1983)). If the language is unambiguous, its plain meaning conti’ols unless Congress has “clearly expressed” a contrary legislative intent. Id. In Tennessee Valley Authority v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978), the Supreme Court examined the legislative history of the ESA. There, to conserve an endangered species of fish, the Court enjoined the TVA from completing construction of a dam which had commenced before the enactment of the latest version of the ESA and on which the federal government had spent over $50 million. Id. at 195, 98 S.Ct. at 2302. In so doing, the Court stated that “[t]he plain intent of Congress in enacting [the ESA] was to halt and reverse the trend toward species extinction, whatever the cost.” Id. at 184, 98 S.Ct. at 2297 (emphases added); see also id. at 174, 98 S.Ct. at 2291 (stating that the Court’s “examination of the language, history, and structure of [the Act] indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities”); see generally Comment, “Habitat Conservation Plans Under the Endangered Species Act,” 24 San Diego L.Rev. 243 (1987) (section on the legislative history of the ESA and its predecessor Acts). The Court’s discussion of the Act in TVA makes clear that, on the one hand, the Navy’s “primary mission” construction is not viable because it understates the Navy’s duty to conserve. The Navy concedes that section 7(a)(1) contains a congressional directive that agencies must act affirmatively in the interest of listed species, but qualifies the declaration by stating that the section was not “intended to frustrate the agencies’ accomplishment of their primary missions.” Appellee’s Brief at 20. The Court in TVA rejected" }, { "docid": "21391894", "title": "", "text": "equity court”). Hill held that courts do not have discretion to balance the parties’ competing interests in ESA cases because Congress “afford[ed] first priority to the declared national policy of saving endangered species.” 437 U.S. at 185, 98 S.Ct. 2279. Hill also held that Congress established an unparalleled public interest in the “incalculable” value of preserving endangered species. Id. at 187-88, 98 S.Ct. 2279. It is the incalculability of the injury that renders the “remedies available at law, such as monetary damages ... inadequate.” See eBay, 547 U.S. at 391, 126 S.Ct. 1837; see also Amoco, 480 U.S. at 545, 107 S.Ct. 1396 (“Environmental injury, by its nature, can seldom be adequately remedied by money damages.... ”); Cal. ex rel. Lockyer v. U.S. Dep’t of Agric., 575 F.3d 999 (9th Cir.2009) (same). But, although Hill clarified that the “language, history, and structure” of the ESA, 437 U.S. at 174, 98 S.Ct. 2279, remove several factors in the four-factor test from a court’s equitable jurisdiction, Hill did not resolve whether plaintiffs must establish irreparable injury. That factor was not an issue in Hill because there was uncontro-verted scientific evidence that completion and operation of the disputed project would “either eradicate the known population of [the listed species] or destroy their critical habitat.” Id. at 171, 98 S.Ct. 2279. There is nothing in the ESA that explicitly, “or by a necessary and inescapable inference,” restricts a court’s discretion to decide whether a plaintiff has suffered irreparable injury. See Amoco, 480 U.S. at 542, 107 S.Ct. 1396 (internal quotation marks omitted); 16 U.S.C. § 1540(g)(1)(A). Although Congress altered the third and fourth prongs of the traditional four-factor test for injunctive relief in ESA cases, Hill, 437 U.S. at 185, 187, 98 S.Ct. 2279, and the second is generally not at issue in environmental cases, Amoco, 480 U.S. at 545,107 S.Ct. 1396, the ESA does not allow courts to put their “thumb on the scales” in evaluating the first prong, Monsanto, 561 U.S. at 157,130 S.Ct. 2743. Thus, even though Winter and Monsanto address NEPA, not the ESA, they nonetheless undermine the theoretical foundation" }, { "docid": "11500736", "title": "", "text": "must not blindly adopt the conclusions of the consultant agency.” City of Tacoma v. Fed. Energy Regulatory Comm’n, 460 F.3d 53, 76 (D.C.Cir.2006). 62. Reclamation did not ensure that the RPA utilized the best available science. Rather, it uncritically accepted the RPA and did not independently identify and analyze alternative RPA Actions that minimized jeopardy to humans and the human environment while protecting threatened species. D. Balancing of the Harms. (1) Balancing of the Harms in ESA Cases. 63. The Supreme Court held in TVA v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978), that Congress struck the balance in favor of affording endangered species the highest of priorities. In adopting the ESA, Congress intended to “halt and reverse the trend toward species’ extinction, whatever the cost.” Id. at 184, 98 S.Ct. 2279 (emphasis added). TVA v. Hill continues to be viable. See Home Builders, 551 U.S. at 669-71, 127 S.Ct. 2518; see also Oakland Cannabis Buyers’ Co-op., 532 U.S. at 496-97, 121 S.Ct. 1711; Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 543 n. 9, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). 64. Winter does not modify or discuss the TVA v. Hill standard. Although Winter altered the Ninth Circuit’s general preliminary injunctive relief standard by making that standard more rigorous, Winter did not address, nor change, the approach to the balancing of economic hardships where endangered species and their critical habitat are jeopardized. See Biodiversity Legal Found, v. Badgley, 309 F.3d 1166, 1169 (9th Cir.2002) (Congress removed the courts’ traditional equitable discretion to balance parties’ competing interests in ESA injunction proceedings); Nat’l Wildlife Fed’n v. Burlington N.R.R., Inc., 23 F.3d 1508, 1510-11 (9th Cir.1994) (same). 65. Prior decisions involving the coordinated projects’ operations found that TVA v. Hill and related Ninth Circuit authorities foreclose the district court’s traditional discretion to balance economic equities under the ESA. There is no such bar in NEPA injunction proceedings. 66. Plaintiffs have advanced a human welfare exception and contend that unlike any of the prior cases, this case juxtaposes species’ survival against human welfare, requiring a" }, { "docid": "21391909", "title": "", "text": "cost, and that an injunction was the appropriate remedy when a nearly-completed, multimillion-dollar dam threatened an en-' dangered snail darter and its critical habitat). The Supreme Court examined congressional intent to understand how Section 7 of the ESA affected the courts’ equitable powers. Id. at 183-84, 98 S.Ct. 2279. Although the courts ensure compliance with the ESA, as the Supreme Court noted, “Congress had foreclosed the exercise of the usual discretion possessed by a court of equity.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). Discussing Hill, the Ninth Circuit has observed that “[courts] have no expert knowledge on the subject of endangered species, much less do [they] have a mandate from the people to strike a balance of equities [against the interests of an endangered species].” Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir.1987) (internal citations omitted). The majority asserts that “the ESA does not allow courts to put their thumb on the scales,” Maj. op. at 1090. But, I remain firmly convinced that “Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities.... ” Sierra Club, 816 F.2d at 1383. I agree with the Supreme Court that “[o]ne would be hard pressed to find a statutory provision whose terms were any plainer than [those of the ESA].” Romero-Barcelo, 456 U.S at 313,102 S.Ct. 1798 (citing Hill, 437 U.S. at 173, 98 S.Ct. 2279). The ESA commands federal agencies to “insure that any action authorized, funded, or carried out by [them] is not likely to jeopardize the continued existence of any endangered’ species or threatened species or result in the destruction or adverse modification of habitat of such species .... ” 16 U.S.C.A. § 1536. “The purpose and language of the statute under consideration in Hill, not the bare fact of a statutory violation, compel [an injunction in the face of an ESA violation that threatens critical habitat].” Romero-Barcelo, 456 U.S. at 314, 102 S.Ct. 1798. “In Congress’s view, projects that jeopardized the" }, { "docid": "2149111", "title": "", "text": "irreparable injury before issuing injunction). I note further that Strahan has made no showing that whales are disturbed, injured, or otherwise “taken” by approaches at 500 yards. Defendants are entitled to summary judgment on Count IV. D. Summary Strahan has sufficiently shown that the Commonwealth’s licensing of fixed fishing gear by commercial fishing operations had caused and is likely to continue to cause actual harm to endangered whales if such licensing continues. Furthermore, Strahan has stated a sufficient alternative claim that such licensing may result in impermissible habitat modification to the whale’s environment. Strahan has not, however, stated a sufficient claim on Count IV, and he does not have a cause of action on Count III. Once it is established that a given action is sufficiently likely to cause actual harm to an endangered species, the equitable powers of the court may be deployed. I address equitable remedies in the next section. VI. Strahan’s Motion for a Preliminary Injunction The test for the issuance of a preliminary injunction under the ESA differs from the traditional test. For eases involving the ESA, “Congress removed from the courts their traditional equitable discretion in injunction proceedings of balancing the parties’ competing interests.” National Wildlife Federation, 23 F.3d at 1511 (citing Friends of the Earth v. United States Navy, 841 F.2d 927, 933 (9th Cir.1988) (citation omitted)). The statutory language, history, and structure of the ESA “indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities.” TVA v. Hill, 437 U.S. 153, 174, 98 S.Ct. 2279, 2292, 57 L.Ed.2d 117 (1978). “In TVA v. Hill, [the Supreme Court] held that Congress had foreclosed the exercise of the usual discretion possessed by a court of equity.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798,1804, 72 L.Ed.2d 91 (1982) (distinguishing statutory language of the Federal Water Pollution Control Act from the ESA); accord Amoco Production Co. v. Village of Gambell, Alaska, 480 U.S. 531, 543 n. 9, 107 S.Ct. 1396, 1403 n. 9, 94 L.Ed.2d 542 (1987). Under the ESA, “the balance of hardships and the public interest tips" }, { "docid": "22898732", "title": "", "text": "lead to the automatic issuance of an injunction. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). However, a review of Supreme Court precedent reveals that, when federal statutes are violated, the test for determining if equitable relief is appropriate is whether an injunction is necessary to effectuate the congressional purpose behind the statute. See TVA v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). In TVA the Supreme Court examined a violation of Section 7 of the ESA and did not balance the equities. Id. at 193-95, 98 S.Ct. 2279. Instead, the Court ruled that effectuating Congress’ clear intent required issuance of an injunction, regardless of the equities involved. Id. Similarly, in Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir.1987), we noted: In Congress’s view, projects that jeopardized the continued existence of endangered species threatened incalculable harm: accordingly, it decided that the balance of hardships and the public interest tip heavily in favor of endangered species. We may not use equity’s scales to strike a different balance. Id. (citation omitted). While neither this court nor the Supreme Court has yet ruled that an injunction must issue when the Service fails to comply with Section 4 of the ESA, as it has for violations of Section 7, Congress’ purpose for passing the ESA applies to both provisions. Regardless of whether the Service failed to comply with Section 7 or Section 4 of the ESA: Congress has established procedures to further its policy of protecting endangered species. The substantive and procedural provisions of the ESA are the means determined by Congress to assure adequate protection. Only by requiring substantial compliance with the act’s procedures can we effectuate the intent of the legislature. Id. at 1384. In TVA, the Supreme Court held that the clear objectives and language of Congress in passing the ESA removed the traditional discretion of courts in balancing the equities before awarding injunctive relief. “Congress has spoken in the plainest of words, making it abundantly clear that the balance [of equities] has been struck in favor" }, { "docid": "11500737", "title": "", "text": "Gambell, 480 U.S. 531, 543 n. 9, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). 64. Winter does not modify or discuss the TVA v. Hill standard. Although Winter altered the Ninth Circuit’s general preliminary injunctive relief standard by making that standard more rigorous, Winter did not address, nor change, the approach to the balancing of economic hardships where endangered species and their critical habitat are jeopardized. See Biodiversity Legal Found, v. Badgley, 309 F.3d 1166, 1169 (9th Cir.2002) (Congress removed the courts’ traditional equitable discretion to balance parties’ competing interests in ESA injunction proceedings); Nat’l Wildlife Fed’n v. Burlington N.R.R., Inc., 23 F.3d 1508, 1510-11 (9th Cir.1994) (same). 65. Prior decisions involving the coordinated projects’ operations found that TVA v. Hill and related Ninth Circuit authorities foreclose the district court’s traditional discretion to balance economic equities under the ESA. There is no such bar in NEPA injunction proceedings. 66. Plaintiffs have advanced a human welfare exception and contend that unlike any of the prior cases, this case juxtaposes species’ survival against human welfare, requiring a balancing of the BiOp’s threats of harm to humans, health, safety, and protection of affected communities. No case, including TVA v. Hill, which concerned the competing economic interest in the operation of a hydro-electric project and prohibited federal courts from balancing the loss of funds spent on that project against the loss of an endangered species, expressly addresses whether the ESA precludes balancing of harms to humans and the human environment under the circumstances presented here. 67. This case involves both harm to threatened species and to humans and their environment. Congress has not nor does TVA v. Hill elevate species protection over the health and safety of humans. (2) Balancing the Harms under NEPA. 68. Although it is undisputed that all harms may be considered in evaluating a claim for injunctive relief under NEPA, an injunction should not issue if enjoining such government action would result in more harm to the environment than denying injunctive relief. Save Our Ecosystems, 747 F.2d at 1250. E. The Public Interest. 69. In adopting the ESA, Congress explicitly" }, { "docid": "12730171", "title": "", "text": "east and west of 144\"W longitude and reclassified the western population as endangered. Plaintiffs’ present motion seeks to enjoin all trawl fishing within critical habitat west of 144\"W longitude (i.e., the area in which the endangered western population occurs). The trawl fisheries that would be affected include: pollock, Atka mackerel, Pacific cod, various species of sole and rockfish, Pacific Ocean perch, and flatfish. For the June-December 2000 period, the combined TAC remaining to be taken by these fisheries in critical habitat totals 346,407 metric tons, representing over 25% of the remaining catch in the BSAI and GOA overall. IV. STANDARD FOR INJUNCTIVE RELIEF UNDER ESA SECTION 7(a) The traditional test for permanent in-junctive relief is actual success on the merits, irreparable injury, and inadequacy of legal remedies. Sierra Club v. Penfold, 857 F.2d 1307, 1318 (1988). This test requires a court to balance any competing claims of injury and the effect granting or withholding injunctive relief would have on the parties and the public interest. Id. The traditional standard, however, is not the test for injunctive relief under the ESA. See TVA v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978); National Wildlife Federation v. Burlington Northern R.R., 23 F.3d 1508, 1511 (9th Cir.1994); Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir.1987). Under the ESA, Congress has “foreclosed the exercise of the usual discretion possessed by a court of equity.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). The “language, history, and structure” of the ESA demonstrates “beyond doubt that Congress intended endangered species to be afforded the highest of priorities.” TVA v. Hill, 437 U.S. 153, 174, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). Under the ESA, the balance of the hardships has already been struck in favor of endangered species. See id. at 194, 98 S.Ct. 2279. Moreover, where injury to an endangered species is threatened, legal remedies are necessarily inadequate. See Weinberger, 456 U.S. at 314, 102 S.Ct. 1798 (only injunctive relief can vindicate the objectives of the ESA to preserve endangered species). See also" }, { "docid": "11500735", "title": "", "text": "habitat. Rather, an improper analysis of raw salvage data is utilized to generate a series of “break points,” including a -5,000 cfs ceiling on negative OMR flows. There is no analysis of critical habitat that independently justifies this specific flow prescription, as opposed to the ceiling of -5,600 proposed by Plaintiffs, or any other level. (6) Reclamation’s ESA Responsibility. 60. The ESA regulations require the action agency to “determine whether and in what manner to proceed with the action in light of its section 7 obligations and the Service’s biological opinion.” 50 C.F.R. 402.15(a). Prior to accepting and implementing the 2008 Smelt BiOp RPA, Reclamation had an independent obligation under ESA section 7(a)(2) to ensure that it “use[d] the best scientific and commercial data available.” 61. Reclamation, as the federal action agency, “may not rely solely on a FWS biological opinion to establish conclusively its compliance with its substantive obligations under section 7(a) (2).” Pyramid Lake Paiute Tribe of Indians v. U.S. Dept. of the Navy, 898 F.2d 1410, 1415 (9th Cir.1990). “[T]he action agency must not blindly adopt the conclusions of the consultant agency.” City of Tacoma v. Fed. Energy Regulatory Comm’n, 460 F.3d 53, 76 (D.C.Cir.2006). 62. Reclamation did not ensure that the RPA utilized the best available science. Rather, it uncritically accepted the RPA and did not independently identify and analyze alternative RPA Actions that minimized jeopardy to humans and the human environment while protecting threatened species. D. Balancing of the Harms. (1) Balancing of the Harms in ESA Cases. 63. The Supreme Court held in TVA v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978), that Congress struck the balance in favor of affording endangered species the highest of priorities. In adopting the ESA, Congress intended to “halt and reverse the trend toward species’ extinction, whatever the cost.” Id. at 184, 98 S.Ct. 2279 (emphasis added). TVA v. Hill continues to be viable. See Home Builders, 551 U.S. at 669-71, 127 S.Ct. 2518; see also Oakland Cannabis Buyers’ Co-op., 532 U.S. at 496-97, 121 S.Ct. 1711; Amoco Prod. Co. v. Village of" }, { "docid": "6998942", "title": "", "text": "interests.” Id. at 1511 (citing Friends of the Earth v. United States Navy, 841 F.2d 927, 933 (9th Cir.1988)). As the Supreme Court has noted, “Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities.” TVA v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). Accordingly, courts “may not use equity’s scales to strike a different balance.” Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir.1987); see also Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir.1996) (“Congress has determined that under the ESA the balance of hardships always tips sharply in favor of endangered or threatened species.”). A Given this clear authority, we must at the onset reject the argument of the federal appellants that the district court erred as a matter of law by failing to conduct a traditional preliminary injunction analysis and, in particular, by failing to weigh economic harm to the public in reaching its conclusion. As the Supreme Court has instructed, such an analysis does not apply to ESA cases because Congress has already struck the balance. Id. Therefore, we conclude that the district court did not apply an incorrect legal standard in this case. ' We decline to address the legal issues raised by the district court’s summary judgment order. We review the merits only in the very confined context of determining whether the district court abused its discretion in granting the preliminary injunction. To establish a substantial likelihood of success on the merits sufficient to pass appellate review of a district court’s grant of a preliminary injunction, the plaintiffs were only obligated to show “a fair chance of success.” Republic of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir.1988) (en banc). Based on our review of the record and briefs in this emergency appeal, we conclude that the plaintiffs have met this burden by raising substantial questions as to whether the agencies have violated Section 7 of the ESA by improperly circumscribing the scope of the consultation" }, { "docid": "2149112", "title": "", "text": "test. For eases involving the ESA, “Congress removed from the courts their traditional equitable discretion in injunction proceedings of balancing the parties’ competing interests.” National Wildlife Federation, 23 F.3d at 1511 (citing Friends of the Earth v. United States Navy, 841 F.2d 927, 933 (9th Cir.1988) (citation omitted)). The statutory language, history, and structure of the ESA “indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities.” TVA v. Hill, 437 U.S. 153, 174, 98 S.Ct. 2279, 2292, 57 L.Ed.2d 117 (1978). “In TVA v. Hill, [the Supreme Court] held that Congress had foreclosed the exercise of the usual discretion possessed by a court of equity.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798,1804, 72 L.Ed.2d 91 (1982) (distinguishing statutory language of the Federal Water Pollution Control Act from the ESA); accord Amoco Production Co. v. Village of Gambell, Alaska, 480 U.S. 531, 543 n. 9, 107 S.Ct. 1396, 1403 n. 9, 94 L.Ed.2d 542 (1987). Under the ESA, “the balance of hardships and the public interest tips heavily in favor of protected species.” National Wildlife Federation, 23 F.3d at 1511 (citations omitted). On the present record, it is clear that endangered whales use Massachusetts coastal waters where gillnets and lobster gear are placed, and that gillnets and lobster gear have harmed endangered whales and are likely to continue doing so. “[C]ourts have granted injunctive relief only where petitioners have shown that the alleged activity has actually harmed the species or if continued will actually, as opposed to potentially, cause harm to the species.” American Bald Eagle, 9 F.3d at 166. Defendants have been aware of the actual harm to endangered whales from fixed fishing gear since 1988, at the latest. See, e.g., Executive Summary at 2, TRO Ex. 6; Mayo Report at 7, TRO Ex. 3; Kraus Report at 24, TRO Ex. 5; Phillips Aff. ¶¶ 3-5. If Defendants continue to authorize the use of gillnets and lobster gear in Massachusetts coastal waters while endangered whales are present, there is a strong likelihood that endangered whales will be “taken” in violation of" }, { "docid": "6998941", "title": "", "text": "(9th Cir.2003) (en banc). In considering a preliminary injunction appeal, we ordinarily do not decide the ultimate merits of the case, but only the temporal rights of the parties until the district court renders judgment on the merits of the case based on a fully developed record. Gilder v. PGA Tour, Inc., 936 F.2d 417, 422 (9th Cir.1991). Mere disagreement with the district court’s conclusions is not sufficient reason for us to reverse the district court’s decision regarding a preliminary injunction. Sports Form, Inc. v. United Press Int’l, Inc., 686 F.2d 750, 752 (9th Cir.1982); see also Ranchers Cattleman Action Legal Fund United Stockgrowers of Am. v. United States Dep’t of Agric. (“R-CAJLF”), 415 F.3d 1078, 1080 (9th Cir.2005) (setting forth standard of review). The traditional preliminary injunction analysis does not apply to injunctions issued pursuant to the ESA. Nat’l Wildlife Fed’n v. Burlington N. R.R., Inc., 23 F.3d 1508, 1510 (9th Cir.1994). “In cases involving the ESA, Congress removed from the courts their traditional equitable discretion in injunction proceedings of balancing the parties’ competing interests.” Id. at 1511 (citing Friends of the Earth v. United States Navy, 841 F.2d 927, 933 (9th Cir.1988)). As the Supreme Court has noted, “Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities.” TVA v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). Accordingly, courts “may not use equity’s scales to strike a different balance.” Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir.1987); see also Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir.1996) (“Congress has determined that under the ESA the balance of hardships always tips sharply in favor of endangered or threatened species.”). A Given this clear authority, we must at the onset reject the argument of the federal appellants that the district court erred as a matter of law by failing to conduct a traditional preliminary injunction analysis and, in particular, by failing to weigh economic harm to the public in reaching its conclusion. As" }, { "docid": "21391908", "title": "", "text": "the ESA’s legislative purpose and our Ninth Circuit precedent. Winter and Monsanto are not “clearly irreconcilable” with Thomas as required for a three-judge panel to overturn settled Ninth Circuit case law. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003). Winter and Monsanto focus on NEPA’s — not the ESA’s — standard for in-junctive relief. Winter and Monsanto do not address the ESA, which has a unique purpose and history, and still shines as the “most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” Babbitt v. Sweet Home Chapter of Cmtys. for a Great Oregon, 515 U.S. 687, 698, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995). The Supreme Court has carefully considered the ESA’s purpose and text in terms of a court’s equitable powers when faced with an ESA violation. See TVA v. Hill, 437 U.S. 153, 173, 193-95, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (finding that it was the plain intent of Congress in enacting the ESA to halt and reverse the trend towards species extinction, whatever the cost, and that an injunction was the appropriate remedy when a nearly-completed, multimillion-dollar dam threatened an en-' dangered snail darter and its critical habitat). The Supreme Court examined congressional intent to understand how Section 7 of the ESA affected the courts’ equitable powers. Id. at 183-84, 98 S.Ct. 2279. Although the courts ensure compliance with the ESA, as the Supreme Court noted, “Congress had foreclosed the exercise of the usual discretion possessed by a court of equity.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). Discussing Hill, the Ninth Circuit has observed that “[courts] have no expert knowledge on the subject of endangered species, much less do [they] have a mandate from the people to strike a balance of equities [against the interests of an endangered species].” Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir.1987) (internal citations omitted). The majority asserts that “the ESA does not allow courts to put their thumb on the scales,” Maj. op. at 1090. But, I remain firmly convinced that “Congress has" } ]

[ { "docid": "6998426", "title": "", "text": "that a defendant’s eligibility for parole was not a relevant factor that a jury ought to consider, holding that “Simmons is inapposite as it involves a defendant’s ineligibility for parole and not, as here, information that the defendant would one day be released from prison.” Young II at 87 n. 6. We agree with Young that the State did, in fact, refer to Young’s future dangerousness at the resentencing phase (although the State did so without specifically relying upon his future dangerousness as a basis for seeking the death penalty), and that these references were sufficient to place Young’s future dangerousness at issue. Nonetheless, because there is no dispute that Young would have been parole eligible in thirty years, we do not believe that the Supreme Court of South Carolina’s conclusion was unreasonable or that Young’s claim entitles him to habeas relief. Young’s second argument — that juror confusion necessitated his proposed instruction — also fails under the facts present here. When asked on voir dire about the likely duration of a life sentence, one juror responded that the defendant would serve “about twenty years.” A second juror answered that a person so sentenced would not necessarily spend the rest of his life in prison. All but two of the remaining jurors also expressed an opinion on the matter; each believed that a life sentence foreclosed the possibility of parole. Although the district court subsequently refused Young’s request to inform the jury of the thirty-year minimum, the court did instruct the jury that “the terms ‘life imprisonment’ and ‘death sentence’ should be understood in their ordinary and plain meaning.” J.A.1929. In other words, the district court — -by instructing the jury that life imprisonment means “life imprisonment” — effectively gave Young more than he asked for, and any uncertainty on the part of the jury in this regard should have been obviated by the court’s instruction. Juries are presumed to follow the court’s instructions, see United States v. Francisco, 35 F.3d 116, 120 (4th Cir.1994), and we do not believe that the Supreme Court of South Carolina’s rejection of this" } ]

[ { "docid": "22421479", "title": "", "text": "argue to sentencing juries that defendants’ future dangerousness is an appropriate consideration in determining whether to affix a sentence of death. 512 U. S., at 162-163 (plurality opinion). Simmons sought to rebut the prosecution’s “generalized argument of future dangerousness” by presenting the jury with evidence that “his dangerousness was limited to elderly women,” none of whom he was likely to encounter in prison. Id., at 157. Simmons’ efforts to shore up this argument by demonstrating to the jury that, under South Carolina law, he was ineligible for parole were rebuffed by the trial court. This Court reversed the judgment of the South Carolina Supreme Court upholding Simmons’ death sentence. A plurality of the Court noted that a prosecutor’s future dangerousness argument will “necessarily [be] undercut” by “the fact that the alternative sentence to death is life without parole.” Id., at 169. The plurality, relying on Gardner v. Florida, 430 U. S. 349 (1977), and Skipper v. South Carolina, 476 U. S. 1 (1986), concluded that “[bjecause truthful information of parole inél-igibility allows the defendant to ‘deny or explain’ the showing of future dangerousness, due process plainly requires that he be allowed to bring it to the jury’s attention.” 512 U. S., at 169. Justice O’Connor, joined by The Chief Justice and Justice Kennedy, concurred in the judgment, providing the dispositive votes necessary to sustain it. The concurrence recognized: “[The Court has] previously noted with approval... that ‘[m]any state courts have held it improper for the jury to consider or to be informed — through argument or instruction — of the possibility of commutation, pardon, or parole.’ California v. Ramos, 463 U. S. [992, 1013, n. 30 (1983)]. The decision whether or not to inform the jury of the possibility of early release is generally left to the States.” Id., at 176. The concurrence also distinguished Skipper, noting that Skipper involved an attempt to introduce “factual evidence” regarding the defendant himself, while Simmons “sought to rely on the operation of South Carolina’s sentencing law” to demonstrate that he did not present a future danger. 512 U. S., at 176. But the" }, { "docid": "14233614", "title": "", "text": "test to Mor-va’s case, we find no constitutional violation warranting habeas relief under § 2254(d). The court first addressed the three cases on which Morva relied in'support of his claim — Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1. (1986), and Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) — and .found they did not dictate the result he urged. Morva I, 683 S.E.2d at 564-66. The court then discussed Virginia precedent on the relevance of prison-environment evidence to a future-dangerousness assessment and, finding irrelevant and therefore inadmissible an “essential” part of Dr. Cunningham’s proffered testimony (i.e., his testimony regarding prison life, prison security, and statistics on similarly situated defendants’ instances of violence in prison), concluded that “the circuit court did not err or abuse its discretion in denying [Morya’s] motion” because Morva did not satisfy the particularized-need test. Id. at 565-66. The Supreme Court of Virginia’s conclusion that Gardner,' Skipper, and Simmons do not support the constitutional rule Mor-va asserts is neither contrary to, n'or-involves an unreasonable application of, clearly established federal law. Gardner concerned a court’s imposition of the death penalty on the basis of a confidential pre-sentence report that was never disclosed to the defense. 430 U.S. at 353, 97 S.Ct. 1197 (plurality opinion). Vacating and remanding the case for resentencing, the U.S. Supreme Court announced that the imposition of a' death sentence “on • the basis of information which [the defendant] had no opportunity to deny or explain” is unconstitutional. Id. at 362, 97 S.Ct. 1197 (plurality .opinion) (emphasis added) (finding a due process violation); id. at 364, 97 S.Ct. 1197 (White, J., concurring in the judgment) (finding-an Eighth Amendment violation); id. (Brennan, J., concurring ih part-and dissenting in part) (joining the plurality’s due process reasoning). The Court relied on this general principle years later in Skipper, when it considered a capital defendant’s right to present mitigating evidence regarding future dangerousness when the prosecution asserts that aggravating factor, lest the defendant be" }, { "docid": "7507550", "title": "", "text": "life,” rather than evidence concerning history and experience particular to the defendant. Cherrix, 513 S.E.2d at 653. Because the evidence was not specific to the defendant, but rather reached prison conditions generally, the court found that the trial court had properly excluded it. Id. In Burns, the defendant, recognizing that general prison life evidence had been deemed in Cherrix immaterial to mitigation, proffered the same evidence, but for the purpose of rebutting the state’s future dangerousness claim. The defendant argued that prison life evidence is material, as prison is the only society to which a capital defendant can pose a “continuing serious threat,” and therefore he should be permitted to demonstrate that the threat of criminal acts in the future is severely limited in a maximum security prison. Burns, 541 S.E.2d at 893. The court disagreed, reiterating its holding in Cherrix that the right to present mitigation evidence does not limit the court’s authority to exclude evidence which is immaterial or irrelevant, and holding that the relevant inquiry is not whether the defendant “could commit criminal acts of violence in the future, but whether he would.” Id. It determined that evidence regarding the general nature of prison life was not relevant to the particular facts of the defendant’s history and background and the circumstances of his offense, even when offered in rebuttal to evidence of future dangerousness. Id. Because this issue was adjudicated on the merits in state court, pursuant to § 2254(d) I may grant relief on Bell’s claims only if he shows either that the state court adjudication resulted in a decision that was contrary to or involved an unreasonable application of federal law, as determined by the United States Supreme Court, or resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. I find that Bell meets neither standard, that the Supreme Court of Virginia’s adjudication was reasonable, and that I must deny relief. First, Bell asserts that Virginia’s case law on prison conditions evidence is contrary to clearly established federal law, namely Skipper" }, { "docid": "19593625", "title": "", "text": "process because in a death penalty case, he \"must be allowed to present rebuttal evidence.\" Appellant's Br. 24. After our remand in Porter II , this court decided Morva v. Zook , which held on § 2254(d) review that a Virginia state court's decision-that the defendant, Morva, had no due process right to appointment of a prison risk-assessment expert because he did not make the required particularized showing-was not contrary to or an unreasonable application of clearly established federal law. See 821 F.3d 517, 524-25 (4th Cir. 2016). Morva controls this argument. Quite simply, \"the U.S. Supreme Court has never addressed a capital defendant's right to a state-funded nonpsychiatric expert.\" Morva , 821 F.3d at 524. As Morva explains, two key cases upon which Appellant relies, Skipper v. South Carolina , 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), and Simmons v. South Carolina , 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), are inapposite. In Skipper , the Supreme Court held that Skipper, a capital defendant, was entitled to present mitigating evidence to the jury about his good behavior for the seven months he spent in jail awaiting trial. See 476 U.S. at 4, 106 S.Ct. 1669. And in Simmons , the Court held that \"[w]here the state puts future dangerousness at issue, and the only available alternative sentence to death is life imprisonment without possibility of parole, due process entitles the defendant to inform the capital sentencing jury ... that he is parole ineligible.\" 512 U.S. at 177-78, 114 S.Ct. 2187 (O'Connor, J., concurring in the judgment). As we stated in Morva , these cases \"do not clearly establish a capital defendant's right to a state-funded nonpsychiatric expert.\" Morva , 821 F.3d at 526. Appellant sought to introduce the same type of evidence as Morva, and indeed, the very same expert, Dr. Cunningham, who would take the defendant's history and place it in a broader context to show his likelihood of future dangerousness. Indeed, Appellant's motion for appointment of Dr. Cunningham describes his use of \"context and statistical and actuarial data\" to come up" }, { "docid": "1796183", "title": "", "text": "in the penalty phase, the jury asked, “If a life sentence is imposed, is there any possibility of the Defendant ever being paroled?” I view this question as a clear expression of the jury’s concern about the defendant’s future dangerousness. I would therefore hold that the trial court’s refusal to explain the meaning of life without parole constituted error under Commonwealth v. Clark, supra. I would therefore reverse the order of the court of common pleas and remand for' proceedings consistent with this opinion. I would go further and require an explanation of the meaning of a life sentence in all capital cases. There can be no harm in instructing juries that in Pennsylvania appellant would be statutorily ineligible for parole if sentenced to life in prison, but that a life sentence might nonetheless be commuted by the governor. On the other hand, if we do not so instruct, a jury, erroneously believing that a prisoner sentenced to life may be paroled within a period of years, may impose the death penalty for reasons which are not based in law. Id. at 795-96 (Flaherty, C.J., dissenting). I believe that the Pennsylvania Supreme Court’s analysis of Rompilla’s Simmons claim was an “unreasonable application” of Supreme Court precedent, specifically Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), and Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002), and therefore that it must be reversed under the standards of AEDPA. In Simmons, the Supreme Court held that the defendant’s due process right to answer an allegation against him requires the trial court to instruct the jury that the alternative to the death penalty is life without parole (in states where that is the alternative) if the prosecutor argues that the defendant will pose a danger to others. As Justice Blackmun, who authored the plurality opinion, wrote: “The State may not create a false dilemma by advancing generalized arguments regarding the defendant’s future dangerousness while, at the same time, preventing the jury from learning that the defendant never will be released on parole.”" }, { "docid": "22421478", "title": "", "text": "exception permits retroactive application of “watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” Graham, supra, at 478 (quoting Teague, supra, at 311) (internal quotation marks omitted). “Whatever the precise scope of this [second] exception, it is clearly meant to apply only to a small core of rules requiring observance of those procedures that ... are implicit in the concept of ordered liberty.” Graham, supra, at 478 (internal quotation marks omitted). I — ! HH Petitioner s conviction became final on October 3, 1988, when we declined to review the Virginia Supreme Court’s decision affirming his sentence on direct review. Simmons, the rule of which petitioner now seeks to avail himself, was decided in 1994. In Simmons, the defendant had been found guilty of capital murder for the brutal killing of an elderly woman. The defendant had also assaulted other elderly women, resulting in convictions that rendered him — at least as of the time he was sentenced — ineligible for parole. Prosecutors in South Carolina are permitted to argue to sentencing juries that defendants’ future dangerousness is an appropriate consideration in determining whether to affix a sentence of death. 512 U. S., at 162-163 (plurality opinion). Simmons sought to rebut the prosecution’s “generalized argument of future dangerousness” by presenting the jury with evidence that “his dangerousness was limited to elderly women,” none of whom he was likely to encounter in prison. Id., at 157. Simmons’ efforts to shore up this argument by demonstrating to the jury that, under South Carolina law, he was ineligible for parole were rebuffed by the trial court. This Court reversed the judgment of the South Carolina Supreme Court upholding Simmons’ death sentence. A plurality of the Court noted that a prosecutor’s future dangerousness argument will “necessarily [be] undercut” by “the fact that the alternative sentence to death is life without parole.” Id., at 169. The plurality, relying on Gardner v. Florida, 430 U. S. 349 (1977), and Skipper v. South Carolina, 476 U. S. 1 (1986), concluded that “[bjecause truthful information of parole inél-igibility allows the defendant to" }, { "docid": "12676173", "title": "", "text": "state law. Thus, under Gardner, Skipper, and Simmons, Ramdass was denied his “elemental due process” right to deny or explain the Commonwealth’s evidence of future dangerousness. See Simmons, 512 U.S. at 175 (O’Connor, J., concurring). It is also important to remember the audience of the Simmons right. Simmons is concerned about the defendant’s ability to present rebuttal evidence to a jury. Thus, Simmons is grounded in the right to present information which might affect a jury’s decision making. Juries are not concerned about legal technicalities or remote and theoretical possibilities. They are concerned about practical realities. The Supreme Court recognized this point in Simmons. In Simmons, South Carolina argued that informing the jury that the defendant would be parole ineligible was inherently misleading because future contingencies such as legislative reform, commutation, and clemency might allow the release of the prisoner. The plurality rejected this argument, holding that the defendant could not be denied the right to rebut prosecution evidence of future dangerousness merely because of “hypothetical future developments.” Simmons, 512 U.S. at 166, 114 S.Ct. 2187. The court reasoned that a parole ineligibility instruction was more accurate than no instruction at all, which would inevitably leave the jury to assume that the defendant would eventually be released. Id. Nothing in Justice O’Connor’s concurrence indicates that she disagreed with the plurality that remote contingencies were irrelevant to the due process analysis. In the case at bar, the majority hides its reliance on hypothetical future developments behind a state law shield. Because Ramdass did not become technically “parole ineligible” under Virginia law until judgment was formally entered on the Domino’s Pizza robbery, the majority holds that Simmons is inapplicable. But at the time of the Kayani sentencing, only some hypothetical future development as remote as legislative reform, commutation, or clemency, could have affected entry of the Domino’s Pizza robbery conviction and therefore prevented Ramdass from being parole ineligible. The reason the Supreme Court rejected reliance on such future hypothetical developments is evident in the arbitrary result of the case at bar. At the time of the Kayani sentencing, the court had already" }, { "docid": "22421510", "title": "", "text": "due process rights would be violated if he was ‘sentenced to death “on the basis of information which he had no opportunity to deny or explain,”’” but concluding that the petitioner could not show that his sentence violated this principle). As to Skipper, the only distinction the majority is able to draw between that case and Simmons is that the defendant in Skipper sought to introduce “evidence of his past behavior,” while Simmons wished “an opportunity to describe the extant legal regime.” Ante, at 162. This distinction is simply not enough to make the rule in Simmons “new.” In both cases, the prosecution was seeking to mislead the jury with an argument that excluded facts essential to the defendant’s actual circumstances. The rule in Skipper and Gardner — that a defendant must be allowed an opportunity to rebut arguments put forward by the prosecution — simply cannot turn on whether his rebuttal relies on the fact that he is ineligible for parole or on the fact that he is a model prisoner. The two cases on which the majority relies to argue that a reasonable jurist in 1988 would have thought that petitioner did not have a right to rebut the prosecutor’s future dangerousness arguments simply provide further support for the conclusion that Simmons did not announce a new rule of law. In both California v. Ramos, 463 U. S. 992 (1983), and Caldwell v. Mississippi, 472 U. S. 320 (1985), the Court focused its analysis on whether the information being presented (or withheld) in a sentencing determination permitted accurate and informed decisionmaking on the part of the sentences In Ramos, the Court held that California’s capital sentencing procedure — in which the judge was required to inform the jury that it could sentence the defendant to death or to life without parole, and then to provide the further instruction that the Governor could commute a life sentence without parole — was not constitutionally infirm. (This further instruction is, of course, only relevant when the jury has first been advised that the alternative to the death sentence is the option" }, { "docid": "178134", "title": "", "text": "addressed to legislatures, not to a jury.” Id. at 675. In addition, the government cites Johnson for the argument that Defendant’s argument is inherently illogical, “as it amounts to saying that because this defendant is so dangerous, he does not deserve to be sentenced to death, since his dangerousness will assure his secure confinement. And its illogic shows that it is really an argument against the death penalty, period, since if this defendant should be spared because he is unusually dangerous, surely less dangerous murderers should not be executed either, even though, because they are less dangerous, they are less likely to be confined securely.” Id. While Johnson disapproved of this evidence as a mitigating factor, it approved of it in a proper case as rebuttal evidence to counter future dangerousness, which the government has alleged as a non-statutory aggravating factor in this case, although not of the nature involved in Johnson. Id. at 674-75. Defendant quotes from the Supreme Court’s decision in Skipper v. South Carolina, which held “evidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating.” 476 U.S. 1, 5, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). But the evidence in Skipper concerned the defendant’s good behavior in prison, not security information about the prison. The Supreme Court has not addressed the right of a capital defendant to present evidence of prison security considerations. Schmitt v. Kelly, 189 Fed.Appx. 257, 265 (4th Cir.2006) (concluding state court’s refusal to allow such evidence was not an unreasonable application of federal law). However, a federal district court has joined the Seventh Circuit in holding such testimony is admissible in rebuttal: Because it will be obvious to the jury that the Government’s proof of this factor is intended to show that Wilson, rather than criminals in general, is a future danger, it will be equally obvious to the jury that [the expert’s] testimony, though based on statistical evidence, is intended to shed light on Wilson’s future dangerousness, not on that of anyone else. And because the Government will argue for the death penalty" }, { "docid": "810385", "title": "", "text": "overwhelming aggravating factors, there is no reasonable probability that the omitted evidence would have changed the conclusion that the aggravating circumstances outweighed the mitigating circumstances and, hence, warranted the capital punishment sentence that was imposed. B. Due Process Violation in Voir Dire Sonnier’s second claim, based upon Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), is that he was deprived of due process of law when, during jury selection, the trial court refused to allow the defense to inform the jury that if convicted, Sonnier would be ineligible for parole until he had served 35 years. In Simmons, the court held that where a state argues in favor of the death penalty based upon the defendant’s future dangerousness, the defendant must be allowed to respond to that argument with evidence showing that if sentenced to life in prison, he will not be eligible for parole. Simmons, 512 U.S. at 165, 114 S.Ct. 2187. Simmons does not apply to the facts of this case. Unlike the South Carolina sentencing scheme at issue in Simmons, the Texas death penalty statutes under which Sonnier was sentenced did offer life imprisonment without parole as a possible sentence. Instead, they provided only for sentences of death or life imprisonment with the possibility of parole. Sonnier’s argument, as he concedes, is foreclosed by Supreme Court and Fifth Circuit precedent. See Ramdass v. Angelone, 530 U.S. 156, 169, 120 S.Ct. 2113, 147 L.Ed.2d 125 (2000) (“Simmons applies only to instances where, as a legal matter, there is no possibility of parole if the jury decides the appropriate sentence is life in prison.”); Green v. Johnson, 160 F.3d 1029, 1045 (5th Cir.1998); Wheat v. Johnson, 238 F.3d 357, 362 (5th Cir.2001) (finding Simmons inapplicable to the Texas sentencing scheme); Miller v. Johnson, 200 F.3d 274, 290 (5th Cir.2000) (“[Because 'Miller would have been eligible for parole under Texas law if sentenced to life, we find his reliance on Simmons unavailing.”); Hughes v. Johnson, 191 F.3d 607, 617 (5th Cir.1999). Accordingly, we conclude that Sonnier’s case does not fall within the scope of" }, { "docid": "6275459", "title": "", "text": "must be informed that the defendant is parole-ineligible. 512 U.S. at 171, 114 S.Ct. 2187 (“[t]he State may not create a false dilemma by advancing generalized arguments regarding the defendant’s future dangerousness while, at the same time, preventing the jury from learning that the defendant never will be released on parole”). The pertinent aspect of that ruling as it applies to Woods’s case is that publishing such information to the jury is required only where state law provides for life imprisonment without possibility of parole as an alternative to the death penalty. Skipper held that a state’s refusal to admit a defendant’s evidence of good behavior in prison during the punishment phase of his capital trial prevented the presentation of relevant mitigating evidence to the jury in violation of the Eighth, 476 U.S. at 4, 106 S.Ct. 1669, and Fourteenth, id. at 5 n. 1, 106 S.Ct. 1669, Amendments. In O’Dell, the Court held that the rule of Simmons was not a “new rule” within the meaning of Teague v. Lane, supra. Neither did it fall within one of the exceptions to Teague because it was not a “watershed rule of criminal procedure.” It therefore was inapplicable retroactively on collateral review, even for a defendant who six years earlier had been sentenced to death while prevented from informing his jury that if sentenced to life, he would have been parole-ineligible. 521 U.S. at 165-66, 117 S.Ct. 1969. Under his misreading of these cases, Woods would analogize his situation to that of Simmons. He argues that the alternative sentence to the death penalty in Texas is life imprisonment with parole-eligibility after 40 years and that such a “significant period of incarceration” should be treated identically to life imprisonment without possibility of parole for the purposes of informing the jury. In addition to the language of Simmons itself, we have recognized that parole eligibility in a life sentence fails to trigger its rule. We interpret Simmons to require that a jury be informed about the defendant’s parole eligibility only when (1) the state argues that a defendant represents a future danger to" }, { "docid": "3339895", "title": "", "text": "of conviction.\" Ict. at 735, 112 S.Ct. 2222. V. Finally, we turn to Richmond's argument that the North Carolina Supreme Court's conclusion that he was not entitled to inform the jury of his parole ineligibility for his federal murder conviction is contrary to or an unreasonable application of the Supreme Court's holding in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). A. In Simmons, Justice O'Con-nor, whose concurring opinion we treat as controlling because it represents the narrowest grounds upon which the majority agreed, concluded that \"{w]here the State puts the defendant's future dangerousness in issue, and the only available alternative is life imprisonment without the possibility of parole, due process entitles the defendant to inform the capital sentencing jury-by either argument or instruction-that he is parole ineligible.\" Id. at 178, 114 S.Ct. 2187 (O'Connor, J., concurring). Justice O'Connor rested her conclusion on the Court's precedent holding that \"[wjhere the prosecution specifically relies on a prediction of future dangerousness in asking for the death penalty, ... the elemental due process requirement that a defendant not be sentenced to death on the basis of information which he had no opportunity to deny or explain [requires that the defendant be afforded an opportunity to introduce evidence on this point.]\" Id. at 175, 114 S.Ct. 2187 (quoting Skipper v. South Carolina, 476 U.S. 1, 5 n. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) (internal quotation marks omitted)). Justice O'Con-nor also concluded, however, that a jury need not be informed of a defendant's parole ineligibility where the prosecution limits its argument of future dangerousness to the defendant's potential danger in prison. Id. at 177, 114 S.Ct. 2187 (\"Of course, in ... cases [where the only alter native to death is life without parole] the prosecution is free to argue that the defendant would be dangerous in prison.”). Applying the holding in Simmons, the North Carolina Supreme Court held that Richmond was not entitled to a Simmons instruction because the State’s arguments about his future dangerousness were limited to the danger he posed in prison to other inmates" }, { "docid": "12676172", "title": "", "text": "judgment); id. at 163-64, 114 S.Ct. 2187 (plurality opinion) (“In assessing future dangerousness, the actual duration of the defendant’s prison sentence is indisputably relevant.... Indeed, there may be no greater assurance of a defendant’s future nondangerousness to the public than the fact that he never will be released on parole.”). This principle has full force in the case at bar. At capital sentencing, the prosecution presented evidence of Ramdass’ future dangerousness. Some of this evidence included the fact that Ramdass had committed the Pizza Hut robbery and the Domino’s Pizza robbery. More importantly, the Commonwealth repeatedly referred to the fact that Ramdass had committed many of his crimes while on parole. The Commonwealth mentioned the phrase “mandatory parole” several times, suggesting to the jury that the Commonwealth would have no choice but to parole Ram-dass at some future date. In the face of this evidence of future dangerousness, Ramdass was rendered powerless to explain to the jury that, but for what was at that point a meaningless ministerial act, he was ineligible for parole under state law. Thus, under Gardner, Skipper, and Simmons, Ramdass was denied his “elemental due process” right to deny or explain the Commonwealth’s evidence of future dangerousness. See Simmons, 512 U.S. at 175 (O’Connor, J., concurring). It is also important to remember the audience of the Simmons right. Simmons is concerned about the defendant’s ability to present rebuttal evidence to a jury. Thus, Simmons is grounded in the right to present information which might affect a jury’s decision making. Juries are not concerned about legal technicalities or remote and theoretical possibilities. They are concerned about practical realities. The Supreme Court recognized this point in Simmons. In Simmons, South Carolina argued that informing the jury that the defendant would be parole ineligible was inherently misleading because future contingencies such as legislative reform, commutation, and clemency might allow the release of the prisoner. The plurality rejected this argument, holding that the defendant could not be denied the right to rebut prosecution evidence of future dangerousness merely because of “hypothetical future developments.” Simmons, 512 U.S. at 166, 114 S.Ct." }, { "docid": "3339896", "title": "", "text": "process requirement that a defendant not be sentenced to death on the basis of information which he had no opportunity to deny or explain [requires that the defendant be afforded an opportunity to introduce evidence on this point.]\" Id. at 175, 114 S.Ct. 2187 (quoting Skipper v. South Carolina, 476 U.S. 1, 5 n. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) (internal quotation marks omitted)). Justice O'Con-nor also concluded, however, that a jury need not be informed of a defendant's parole ineligibility where the prosecution limits its argument of future dangerousness to the defendant's potential danger in prison. Id. at 177, 114 S.Ct. 2187 (\"Of course, in ... cases [where the only alter native to death is life without parole] the prosecution is free to argue that the defendant would be dangerous in prison.”). Applying the holding in Simmons, the North Carolina Supreme Court held that Richmond was not entitled to a Simmons instruction because the State’s arguments about his future dangerousness were limited to the danger he posed in prison to other inmates and staff. Richmond, 495 S.E.2d at 696. We conclude, however, that the State’s arguments about Richmond’s future dangerousness were not limited to the .potential danger he posed in prison. Accordingly, we find that the North Carolina Supreme Court’s application of Simmons was unreasonable. In the very last thought it left the jury to ponder before beginning its sentencing deliberations, the State expressly put Richmond’s future dangerousness in issue by stating: When you know that someone has killed not just once, Lisa Ann Nadeau, not just twice, H[e]lisa Hayes, not just three times, Darien Hayes, not just four times, Phillip Hayes. Four times, folks. What does it take? What does it take? There is only one way you can ensure that this defendant does not kill again, and that is to impose the penalty that he has earned and worked for and deserves. I ask you, to impose the death penalty on all three cases. Id. (emphasis added). The North Carolina Supreme Court concluded that this statement, when read in context, solely placed in issue Richmond’s" }, { "docid": "6275458", "title": "", "text": "v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). B. The Simmons issue. Woods finally attempts to extend the jury instruction requirement of Sim mons v. South Carolina, supra, to cover his circumstance, citing only that “[s]uch an instruction is required to comport with due process.” By that statement, we infer that Woods raises this argument under color of the Fourteenth Amendment. Woods argues that Simmons, Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), and O’Dell v. Netherland, 521 U.S. 151, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997) hold that where future dangerousness is at stake, a jury must be told of the fact that the prisoner, if given a life sentence rather than a death sentence, would serve a significant period of incarceration before he could be released on parole. He blatantly misstates the meaning of those decisions. Simmons requires that where a defendant’s future dangerousness is at issue and state law prohibits his release on parole after being sentenced to life imprisonment, the jury must be informed that the defendant is parole-ineligible. 512 U.S. at 171, 114 S.Ct. 2187 (“[t]he State may not create a false dilemma by advancing generalized arguments regarding the defendant’s future dangerousness while, at the same time, preventing the jury from learning that the defendant never will be released on parole”). The pertinent aspect of that ruling as it applies to Woods’s case is that publishing such information to the jury is required only where state law provides for life imprisonment without possibility of parole as an alternative to the death penalty. Skipper held that a state’s refusal to admit a defendant’s evidence of good behavior in prison during the punishment phase of his capital trial prevented the presentation of relevant mitigating evidence to the jury in violation of the Eighth, 476 U.S. at 4, 106 S.Ct. 1669, and Fourteenth, id. at 5 n. 1, 106 S.Ct. 1669, Amendments. In O’Dell, the Court held that the rule of Simmons was not a “new rule” within the meaning of Teague v. Lane, supra. Neither did it" }, { "docid": "19593624", "title": "", "text": "risk assessment testimony as mitigating evidence in the penalty phase of his trial. The district court was correct in rejecting this claim. Before trial, Appellant moved for the appointment of Dr. Mark Cunningham \"as an expert on the assessment of the risk of violence by prison inmates and, in particular, the risk of future dangerousness posed by [Appellant] if incarcerated in a Virginia penitentiary for life.\" J.A. 66. The expert would have examined Appellant's history and determined the likelihood of violence in a prison setting. The trial court denied the motion, explaining \"the Virginia Supreme Court has consistently upheld the denial of use of public funds for such an expert, as it's not considered to be ... proper mitigation evidence.\" Id. at 206. In addition, the trial court decided that the testimony would not be \"particular[ized]\" to Appellant but rather, \"very general testimony\" about prisons and Appellant's likely behavior there. Id. at 207. The Supreme Court of Virginia affirmed. Here, Appellant claims that the denial of this expert violated his Fourteenth Amendment right to due process because in a death penalty case, he \"must be allowed to present rebuttal evidence.\" Appellant's Br. 24. After our remand in Porter II , this court decided Morva v. Zook , which held on § 2254(d) review that a Virginia state court's decision-that the defendant, Morva, had no due process right to appointment of a prison risk-assessment expert because he did not make the required particularized showing-was not contrary to or an unreasonable application of clearly established federal law. See 821 F.3d 517, 524-25 (4th Cir. 2016). Morva controls this argument. Quite simply, \"the U.S. Supreme Court has never addressed a capital defendant's right to a state-funded nonpsychiatric expert.\" Morva , 821 F.3d at 524. As Morva explains, two key cases upon which Appellant relies, Skipper v. South Carolina , 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), and Simmons v. South Carolina , 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), are inapposite. In Skipper , the Supreme Court held that Skipper, a capital defendant, was entitled to present" }, { "docid": "7767524", "title": "", "text": "that under Simmons v. South Car olina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), the jury must be fully instructed on the alternatives to the death penalty. By not fully informing the jury that a sentence of life imprisonment provides for parole only after forty years, Elizalde argues, the trial court prevented the jury from understanding “the precise meaning of ‘life imprisonment.’ ” See Simmons v. South Carolina, 512 U.S. at 169, 114 S.Ct. 2187. In Simmons, the Supreme Court considered whether a state trial court unconstitutionally prevented the petitioner from informing the jury that if sentenced to life imprisonment, rather than death, he would not be eligible for parole. Id. at 156-61, 114 S.Ct. 2187. The petitioner contended that because juries often misunderstand the prison term required by a life sentence, and because ineligibility for parole has a direct bearing on the important issue of his future dangerousness, a defendant must be allowed to instruct the jury that if sentenced to life in prison he will ineligible for parole. Id. at 160-61, 114 S.Ct. 2187. In a fractured ruling, the Supreme Court agreed. Justice Blackmun’s plurality opinion held that in a death penalty case, a “trial court’s refusal to provide the jury with accurate information regarding petitioner’s parole ineligibility” constitutes a denial of due process. Id. at 162, 114 S.Ct. 2187. It concluded that if the State rests its case for imposing the death penalty at least in part on the defendant’s future dangerousness, “the fact that the alternate to the death sentence is life without parole will necessarily undercut the State’s argument regarding the threat the defendant poses to society.” Id. at 168-69, 114 S.Ct. 2187. We have repeatedly held that Simmons does not require a Texas trial court to instruct a jury as to the meaning of life in prison, because the defendant would not, if sentenced to life imprisonment, be ineligible for parole. See Green, 160 F.3d at 1045 (“[T]he Fifth Circuit has repeatedly refused to extend the rule in Simmons beyond those situations in which a capital murder defendant is statutorily ineligible" }, { "docid": "3150168", "title": "", "text": "as determined by the Supreme Court of the United States. See Green v.French, 143 F.3d at 870. We agree with the Supreme Court of Virginia and with the district court that the evidence was sufficient to support the finding of future dangerousness. The trial court did not deprive Roach of any constitutional protections in this regard. C. Roach next argues that the trial court erred by failing to instruct the jury that, if sentenced to life imprisonment, he would not become eligible for parole for a minimum of twenty-five years. Roach asserts that this court should extend the holding of Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), to include cases where, if sentenced to life imprisonment, the defendant remains eligible for parole. 1. In Simmons, the defendant was tried and convicted of capital murder. Under South Carolina law, the defendant was ineligible for parole because he had previously pleaded guilty to other violent offenses. Id. at 156, 114 S.Ct. 2187. Following the defendant’s conviction, the State sought the death penalty based on his future dangerousness. Id. at 157, 114 S.Ct. 2187. During the penalty phase of the trial, Simmons presented evidence that the general public apparently misunderstood the meaning of the term “life imprisonment.” Id. at 159, 114 S.Ct. 2187. According to the evidence presented, the majority of people believed that if sentenced to life imprisonment in South Carolina, a convicted murderer would be paroled within twenty to thirty years. Id. During trial, the judge had refused to give any instructions to the jury regarding the defendant’s ineligibility for parole. Id. at 160, 114 S.Ct. 2187. Even when the jury inquired as to whether a sentence of life imprisonment carried with it the possibility of parole, the trial judge simply instructed the jury that they were not to concern themselves with parole or parole eligibility. Id. Shortly after receiving this additional instruction, the jury returned with a sentence of death. Id. In her concurring opinion, Justice O’Connor noted that capital sentencing proceedings must comport with the re quirements of the Due Process Clause" }, { "docid": "14233616", "title": "", "text": "sentenced to death oh information he was never allowed to challenge. 476 U.S. at 5 n. 1, 106 S.Ct. 1669. The Court’s holding, however, was narrow: [T]he only question before us is whether the exclusion from the sentencing hearing of the testimony petitioner proffered regarding his good behavior during the over seven months he spent in jail'awaiting trial deprived- [him] of his right to place before the senteneer relevant evidence in mitigation of punishment.- It can hardly be disputed that it did. Id. at 4, 106 S.Ct. 1669 (ehiphasis added). Finally, Simmons announced yet another narrow expansion of a capital defendant’s .right -to introduce mitigating evi- - dence. The, Court, there held that when “the-' defendant^ future .dangerousness .is at issue, ■ and state law prohibits the defendant’s release on parole,- due process requires that the sentencing jury be informed that the defendant is parole ineligible.” Simmons, 512 U.S. at 156, 114 S.Ct. 2187 (plurality opinion); id. at 177-78, 114 S.Ct. 2187 (O’Connor, J.,, concurring 4n the judgment) ((‘Where the State puts the defendant’s future dangerousness in issue,, and the only available alternative sentence to death .is life imprisonment Without possibility of parole, due process entitles the defendant to inform the capital sentencing jury — by either .argument or instruction — that he is parole ineligible.”). These cases do not clearly establish á capital defendant’s right to a state-funded nonpsychiatric expert. See White, 134 S.Ct. at 1702 (‘“[C]learly established Federal law’ for purposes of § 2254(d)(1) includes only ‘the holdings, as opposed to the dicta, of this Court’s decisions.’” (alteration in original) (quoting Howes v. Fields, — U.S. -, 132 S.Ct. 1181, 1187, - 182 L.Ed.2d 17 (2012))). Confined as we are under AEDPA, we conclude that the Supreme Court of Virginia’s decision regarding a right whose‘precise contours’ ... remain ‘unclear,’” is neither contrary to nor an unreasonable application of federal law. Woods, 135 S.Ct. at 1377 (quoting White, 134 S.Ct. at 1705). The Supreme, Court of Virginia’s separate determination that Morva failed to show a particularized need; for the expert also does not run afoul of clearly established law." }, { "docid": "7507568", "title": "", "text": "to present evidence related to the “actual duration” of a defendant’s prison sentence. Id. at 163, 114 S.Ct. 2187. Thus, the court’s refusal to allow the defendant to present evidence regarding his parole ineligibility deprived him of due process. Id. at 162, 114 S.Ct. 2187. I find that Simmons is not parallel to this case; in fact, the Virginia trial court afforded Bell the very protection guarded by Simmons by instructing the jury that life imprisonment is equal to life imprisonment without parole. While the jury’s question related to early release based on something other than parole, the judge’s reiteration of his previous instruction served to bolster the jury’s reliance on the parole ineligible instruction. Any instruction related to non-parole release is outside the scope of Simmons’ holding. Because the Virginia court instructed the jury regarding Bell’s ineligibility for parole, I find that his due process rights were not violated. Virginia law in many ways tracks Simmons. In Yarbrough v. Commonwealth, 258 Va. 347, 519 S.E.2d 602 (1999), the Supreme Court of Virginia held that upon a defendant’s request, a trial court must instruct a jury that “life imprisonment” means “imprisonment for life without possibility of parole.” Id. at 616. The same court in Fishback v. Commonwealth, 260 Va. 104, 532 S.E.2d 629 (2000), held that, in fairness to all parties, jurors should be told that, despite the abolition of parole, certain defendants are still eligible for geriatric release. Id. at 634; see also Bell I, 563 S.E.2d at 717. However, because geriatric release is in “the nature of parole,” jurors determining a sentence for defendants ineligible for geriatric release should be told only of the defendant’s ineligibility for parole generally. Id. It is clear from the record that the Virginia court properly instructed the jury in accordance with Simmons, and that there is no evidence supporting Bell’s claim that the Virginia court acted contrary to or unreasonably applied existing law regarding jury instruction on parole ineligibility. Thus, I deny relief on this claim. 4. Future Dangerousness Aggravator as Unconstitutional. Next, Bell asserts that the Virginia statute making future dangerousness" } ]

[ { "docid": "22426927", "title": "", "text": "accept. Walker v. Altmeyer, supra. The referee, who heard the testimony and found the facts, concluded that Mrs. Ferenz was not “living with” her husband at the time of his death within the meaning of that term used in the Act. The Secretary, who was entrusted by Congress with the task of administering the Act, of interpreting its provisions, and of making “decisions as to the rights of any individual applying for a payment” (Section 205(b)) under the Act, approved that conclusion. Since there was a “reasonable basis in law” for this conclusion and “ ‘warrant in the record’ ” for it, the case should have gone no further and the decision of the Secretary should have been áffirméd. National Labor Relations Board v. Hearst Publications, 1944, 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170. In view of our conclusion that there was substantial evidence to support the findings of the referee, we need not decide whether a mere “reconciliation” had it taken place would have been sufficient to qualify the claimant for benefits under the Social Security Act. For the reasons stated the judgment of the District Court will be reversed and the cause remanded with instructions to enter a judgment affirming the decision of the Social Security Administration. . All functions of the Federal Security Administrator wero transferred to the Secretary of Health, Education and Welfare by Section 5 of the 1953 Reorganization Plan No. 1, effective April 11, 1953, 18 Fed.Reg. 2053, 67 Stat. 631, 5 U.S. C.A. following section 333z-15. . One claim was for widow’s monthly insurance benefits under the provisions of Sec. 202(e) (1) of the Act, 42 U.S.C.A. § 402(e) (1) and the other for lump-sum death payment under Sec. 202 (i), 42 U.S. C.A. § 402 (i). The full lump-sum death payment was granted the widow’s daughter as executrix of the estate of her father. Section 202(e) (1) of the Social Security Act, 49 Stat. 622 et seq. 402(e) (1) provides in part: “The widow (as defined in section 416 (c) of this title) of an individual who died a fully" } ]

[ { "docid": "22918360", "title": "", "text": "Appeals Council of the referee’s decision which was denied. On November 2, 1956 plaintiff’s, counsel requested the Appeals Council to reconsider its decision. Upon denial of this request the instant action was commenced on December 3, 1956. Under Section 205(g) of the-Social Security Act 42 U.S.C.A. § 405(g) the findings of the Secretary as to any facts if supported by substantial evidence are made conclusive on the courts and a hearing de novo may not be had on the evidence. See Ferenz v. Folsom, 3 Cir., 1956, 237 F.2d 46, certiorari denied 1956, 352 U.S. 1006, 77 S.Ct. 569, 1 L.Ed. 2d 551; Hobby v. Hodges, 10 Cir., 1954, 215 F.2d 754; Walker v. Altmeyer, 2 Cir., 1943, 137 F.2d 531; N. L. R. B. v. Link-Belt Co., 1941, 311 U.S. 584, 597, 61 S.Ct. 358, 85 L.Ed. 368. But it was never intended that the courts should abdicate their “conventional judicial function” to review. Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 490, 71 S.Ct. 456, 95 L.Ed. 456. Where the administrative decision is based upon conclusions not reasonably reached upon due consideration of all the relevant issues presented or where the parties have not been given a fair opportunity to be heard upon the facts and applicable law the court may properly correct the errors below. Goldman v. Folsom, 3 Cir., 1957, 246 F.2d 776; Wilson v. Folsom, D.C.D.N.D.1957, 151 F.Supp. 195. In this case the sole issue before the referee was whether since July 28, 1950 or commencing at any time prior to his 65th birthday and continuing to the time he filed application for a disability determination, the claimant was 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 to be of long-continued and indefinite duration” (42 U.S.C.A. § 416 (i) (1). From the record made before the referee it appears that plaintiff testified that his condition was diagnosed as coronary artery disease, that he suffers from shortness of breath, and that he finds" }, { "docid": "2844933", "title": "", "text": "KALODNER, District Judge. In this case, the United States seeks an injunction to prevent interference with the construction work on certain buildings by the City of Philadelphia and certain of its officers. The sole issue for determination is whether the United States, in the construction of war housing under the Lanham Act 1940, 54 Stat. 1125, 42 U.S.C.A. § 1521 et seq., must comply with local building regulations. On the basis of an agreed statement of facts, the pleadings and additional testimony, I state the following Findings of Fact 1. The Federal Public Housing Authority is an agency and instrumentality of the United States, created by Executive Order No, 9070, February 24, 1942, 50 U.S.C.A. Appendix, § 601 note, pursuant to which Order it administers the functions, powers and duties of the Federal Works Administration, under the Act of Congress of October 14, 1940, c. 862, 54 Stat. 1125, as amended, 42 U.S.C.A. § 1521, known as the “Lanham Act.” 2. The Philadelphia Housing Authority is a body politic and corporate, created under the Housing Authorities Law of the Commonwealth of Pennsylvania of May 28, 1937, P.L. 955, 35 P.S. Pa. § 1541 et seq., and acts as agent of the United States of America, through the Federal Public Flousing Authority, in the construction of housing projects under the provisions of the Lanham Act. 3. Pursuant to the provisions of the Lanham Act, the President of the United States, on November 20, 1940, and February 3, 1941, found that an acute shortage of hottsing which would impede the national defense activities existed or impended to the extent of 1,500 family dwelling units in Philadelphia, Pennsylvania, and that such housing would not be provided by private capital when needed. 4. Pursuant to such finding by the President of the United States, the Federal Works Administrator, during the year 1941, erected a housing project in the City of Philadelphia, consisting of 1,000 dwelling units, known as “Passyunk Homes,” on land which had been condemned and title thereto taken by the United States of America, under proceedings in the United States District Court," }, { "docid": "23231352", "title": "", "text": "Referee does not suggest of what such “substantial gainful activity” might practically consist. This Court is cognizant that its power in this case is a limited review of the Referee’s findings: — If his findings of fact are supported by substantial evidence there can be no substitution by this Court for his judgment. 42 U.S. .C.A. § 405(g). However, that limitation does not mean that the Court is to surrender its “conventional judicial function.” Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 466, 95 L.Ed. 456. While the statutory finality (42 U.S.C.A. § 405(g)) of the administrative findings necessarily extends to the reasonable inferences and conclusions drawn from the evidence, nevertheless if it is apparent that the administrative decision is based upon conclusions which were not reasonably reached, or which resulted from improper conclusions of law which are unsupported by the evidence, the Court may and should correct those errors. Pruitt v. Flemming, D.C. S.D.W.Va.1960, 182 F.Supp. 159; Goldman v. Folsom, 3 Cir., 1957, 246 F.2d 776. The test for disability under the Social Security Act consists principally of two parts: (1) a determination of the extent of the physical or mental impairment; and, (2) a determination whether that impairment results in an ability to engage in any substantial gainful activity. 42 U.S.C.A. §§ 416 and 423. After giving full consideration to the entire record, it is my judgment that the Referee’s conclusions are not supported by substantial evidence. The transcript as a whole, read together with the Referee’s opinion, reveals that he must have been substantially influenced in his decision, solely by the medical report of Dr. Cashman.’ Dr. Cashman’s report, standing alone, does not constitute substantial evidence in support of the Referee’s decision, ipso facto, in view of the other medicál evidence and other •facts reflected in the transcript. The claimant in this case has been a laborer all his life. He has but an Eighth Grade education. Since 1956 he has been unable to perform other than simple household tasks, i. e. washing dishes, cleaning. house, etc. When he does so," }, { "docid": "7392291", "title": "", "text": "L.Ed. 1052; United States v. American Trucking Associations, 310 U.S. 534, 549, 60 S.Ct. 1059, 84 L.Ed. 1345. For the foregoing reasons, the judgment of the district court is affirmed. . Section 109 of the 1954 Amendments to the Social Security Act, 42 U.S.C.A. § 415 note provides in pertinent part: “(a) In the case of any individual— “(1) who died prior to September 1, 1950, and was not a fully insured individual (under title II of the Social Security Act), when he died, and, “ (2) who had not less than six quarters of coverage (as defined in such title), such individual shall, except for purposes of determining entitlement of' a former wife divorced to benefits under section 202(g) of the Social Security Act be deemed to have died a fully insured individual. Such individual’s primary insurance amount shall be computed under subsection (a) (2) of section 215 of such Act. For the purpose of such computation, the provisions of Section 215(d) (3) of such Act shall apply if such individual died a currently insured individual (under title II of such Act) and any other person was entitled on the basis of his wages to monthly benefits or a lump-sum death payment under section 202 of such Act; in all other cases the provisions of section 215(d) (4) shall be applicable except that such individual’s closing date shall be the first day of the quarter in which he died. In the case of any such individual, the requirement in subsection (h) of section £03 of such Act that proof of support be filed within two years of the date of his death shall not apply if such proof is filed before September 1956. Title II of the Social Security Act, as amended, 42 U.S.C.A. § 401 et seq., provides in pertinent part: Section 202(e) (1) “The widow (as defined in section 416(c) of this title) of an individual who died a fully insured individual after 1939, if such widow— “(A) has not remarried, “(B) has attained retirement age, “(C) (i) has filed application for widow’s insurance benefits or was" }, { "docid": "23075186", "title": "", "text": "HASTINGS, Senior Circuit Judge. On this appeal we are concerned with the charge of a racially motivated refusal to sublease a rental apartment to a Negro citizen. A complaint was filed by plaintiffs-appellants in the United States District Court for the Northern District of Illinois on January 20, 1969, seeking a declaratory judgment, together with equitable and other appropriate relief against defendants-appellees. The complaint is grounded on the Civil Rights Act of April 9, 1866, 14 Stat. 27, as amended and presently appearing in Title 42, U.S.C.A. § 1982, which provides : “All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property.” The complaint is further brought under the provisions of the recently enacted Civil Rights Act of 1968, Pub.L. 90-284, Title VIII, § 801 et seq., April 11, 1968, 82 Stat. 81 et seq., 42 U.S.C.A. § 3601 et seq. Title VIII is the Fair Housing Title, and the relevant part is set out in the margin herein. The complaint further grounds jurisdiction on the result reached by the Supreme Court in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). As of January 9, 1969 the relationship of the parties to this subsequent litigation follows. Plaintiff Albert Brooks Friedman, a lawyer, was a lessee-tenant residing in apartment 1A at 1959 West Hood Street, Chicago, Illinois. His lease ran until September 30, 1969 and called for a monthly rental of $155. He desired to sublet his apartment beginning January 31, 1969, that being the date he was moving into a newly purchased home. Plaintiff Gloria Smith, a Negro, 22 years of age, resided in an apartment in Maywood, Illinois in a building owned by her mother-in-law. She was married to but separated from her husband and had a divorce action pending in court which she had filed against him. They were the parents of an eleven months old son and Gloria had his care and custody. Her" }, { "docid": "17252192", "title": "", "text": "pertinent. Section 221.53, relating to private contests, provides that the complaint must be filed in the land office which has jurisdiction over the land involved. . 332 U.S. 494, 68 S.Ct. 189, 92 L.Ed. 95. . 30 U.S.C.A. §§ 35-37, 16 Stat. 217, 17 Stat. 94. . See 4 Summers, Oil and Gas, § 869, p. 295. . 30 U.S.C.A. §§ 221, 223, 223a, 226 and 185, 49 Stat. 674. . West v. Work, 56 App.D.C. 191, 11 F.2d 828, 831, certiorari denied 271 U.S. 689, 46 S.Ct. 639, 70 L.Ed. 1153. . 30 U.S.C.A. § 184. . 30 U.S.C.A. § 188. . All leases involved in this litigation wore issued after that date. . 43 C.F.R. 192.161(c) (1954 Supp.). . Michigan Land & Lumber Co. v. Rust, 168 U.S. 589, 593, 18 S.Ct. 208, 42 L.Ed. 591; Moore v. Robbins, 90 U.S. 530, 533, 24 L.Ed. 848. . U.S.Const. Art. 4, § 3; Utah Power & Light Co. v. United States, 243 U.S. 389, 37 S.Ct. 387, 61 L.Ed. 791. . 30 U.S.C.A. § 188. . Suits to annul patents must be brought within six years from issuance. 43 U.S.C.A. § 1166. . Cf. Moore v. Robbins, supra, 96 U.S. at page 534. . Knight v. United States Land Ass’n, 142 U.S. 161, 181, 12 S.Ct. 258, 264, 35 L.Ed. 974. . Act of Sept. 2, 1960, P.L. 86-705, 30 U.S.C.A. §§ 181 et seq., 182, 184, 187a, 226, 226-1, 226-2, 226d, 226e, 241. . H.Rept. No. 1401, 86th Cong., 2d Sess., covering proposed amendments to the Mineral Leasing Act, contains the following: “A major committee amendment strikes out all of paragraphs (1) and (2) of subsection (h) of section 27, as amended by H.R. 10455, dealing with the cancellation, forfeiture, and compelled disposition of interests held in violation of the act, and related matters, and substitutes the present language of the law for that which was proposed in the bill. The committee recognizes that the meaning of this language is under current dispute. The plaintiffs in certain cases pending or recently pending in the U. S. District Court" }, { "docid": "11375797", "title": "", "text": ". I.R.C.1954,Stat. 773, 26 U.S.C.A. § 6214. . I.R.C.1954, §§ 6201-6204, 6211 et seq. 68A Stat. 787-772, 26 U.S.C.A. §§ 6201-6204, 6211 et seq. . I.R.C.1954, § 7444, 68A Stat. 880, 26 U.S.C.A. § 7444. “* * * (c) Divisions. — The chief judge may from time to time divide the Tax Court into divisions of one or more judges, assign the judges of the Tax Court thereto * * * ” Ibid. . I.R.C.1954, § 7460, 68A Stat. 887, 26 U.S.C.A. § 7460. . I.R.C.3954, § 7460(h), 68A Stat. 887. . I.R.C.1954, § 7443(a), 68A Stat. 879, 26 U.S.C.A. § 7443(a). . Except as provided in 28 U.S.C.A. § 1254. . I.R.C.1954, § 7482(a), 68A Stat. 890, 26 U.S.C.A. § 7482(a). . I.R.C.1954, § 7482(c) (3), 68A Stat. 890. . Welch v. Helvering, 1933, 290 U.S. 111, 115, 54 S.Ct. 8, 9, 78 L.Ed. 212; Commissioner of Internal Revenue v. Heininger, 1943, 320 U.S. 467, 64 S.Ct. 249, 88 L.Ed. 171. . See United States v. United States Gypsum Co., 1948, 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746, and the discussion of that opinion in Orvis v. Higgins, 2 Cir., 1950, 180 F.2d 537. . Benoit v. Commissioner, 1 Cir., 1956, 238 F.2d 485, 491. . Heil Beauty Supplies, Inc., v. Commissioner, 8 Cir., 1952, 199 F.2d 193, 195. . For example “Petitioners contend that as all of the facts are stipulated this court should reach its own conclusions without regard to the findings and conclusions of the Tax Court. We cannot agree * * * It is true that where the facts are not in dispute this court may draw inferences of its own. But the ultimate question is whether the findings are supported by the record.” Rolling-wood Corp. v. C. I. R., 9 Cir., 1951, 190 F.2d 263, 265. “On an issue tbat is essentially factual, the scope of * * * review is limited to determining whether there is substantial evidence to support the findings of the Tax Court * * * (citing) and whether the law was correctly applied.” Smoot Sand & Gravel" }, { "docid": "16033737", "title": "", "text": "which can be protected under copyright law. See, McCord Co. v. Plotnick, 1951, 108 Cal.App.2d 392, 239 P.2d 32; Netterville, California Law of Unfair Competition, 1955, 28 So.Cal. Law Rev., pp. 240, 259-268. . 15 U.S.C.A. §§ 1051-1127. . Stauffer v. Exley, 9 Cir., 1950, 184 F. 2d 962; Chamberlain v. Columbia Pictures Corp., 9 Cir., 1951, 186 F.2d 923; Steele v. Bulova Watch Co., 1952, 344 U.S. 280, 282-284, 73 S.Ct. 252, 97 L.Ed. 252; Federal Trade Commission v. Motion Picture Advertising Co., 1953, 344 U.S. 392, 394-395, 73 S.Ct. 361, 97 L.Ed. 426; Ross-Whitney Corp. v. Smith, Kline & French Laboratories, 9 Cir., 1953, 207 F.2d 190; L’Aiglon Apparel v. Lana Lobell, 1954, 3 Cir., 214 F.2d 649. . California Civil Code, § 3369(3); California Business and Professions Code, §§ 14400-14403; see, Netterville, California Law of Unfair Competition, 1955, 28 So.Cal.Law Rev. pp. 240, 259-268. . Lanham Trademark Act, §§ 1, 2, 44(h) and (i) ; 15 U.S.C.A. §§ 1051, 1052, 1126 (h) and (i) ; 28 U.S.C.A. § 1338(b). . 17 U.S.C.A. § 101(e); G. Ricordi & Co. v. Columbia Graphophone Co., 2 Cir., 1920, 263 F. 354. . 17 U.S.C.A. § 101(e). . 28 U.S.C.A., Rule 54, p. 118. The Court of Appeals for the Ninth Circuit has adopted the view expressed by the Advisory Committee as to the meaning of this provision. See, Wynn v. Reconstruction Finance Corporation, 9 Cir., 1954, 212 F.2d 953, 955-956; Walter W. Johnson Co. v. Reconstruction Finance Corp., 9 Cir., 1955, 223 F.2d 101, 102. . Biggins v. Oltmer Iron Works, 1946, 154 F.2d 214, 216. . Biggins v. Oltmer Iron Works, supra, Note 37, 154 F.2d at page 216. . Coffman v. Federal Laboratories, D.C. Pa.1947, 73 F.Supp. 409. . Section 1 et seq.; 35 U.S.C.A. § 89 et seq. . Coffman v. Federal Laboratories, 3 Cir., 1948, 171 F.2d 94, 96-97. . Catlin v. United States, 1945, 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911; Baltimore Contractors v. Bodinger, 1955. 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233; Wynn v. Reconstruction Finance Co., 9 Cir., 1954," }, { "docid": "13948768", "title": "", "text": "Title 36 U.S.C.A. § 204(a). . Title 31 U.S.C.A. § 841 et seq. . A complete list of such corporations (Commodity Credit Corporation; Federal Housing Administration, to mention some typical ones) is shown in 31 U.S. C.A. § 846 as last amended by the act of May 13, 1954, c. 201, § 6, 68 Stat. 95. . Title 31 U.S.C.A. § 856 et seq., Act of Dec. 6, 1945, c. 557, Title II, 59 Stat. COO. . Title 36 U.S.C.A., Patrotic Societies and Observances. . The quotation is from the complaint. . Alexander v. Civil Air Patrol, D.C., 134 F.Supp. 691. . “§ 626(1). Civil Air Patrol-Establishment as auxiliary “The Civil Air Patrol is established as a volunteer civilian auxiliary of the Air Force. To assist the Civil Air Patrol in the fulfillment of its objectives as set out in section 202 of Title 36, the Secretary of the Air Force is authorized, under such regulations as he may prescribe with the approval of the Secretary of Defense— “(1) to furnish to the Civil Air Patrol from available stocks which are excess to the requirements of the Departments of the Army, Navy, and Air Force, without regard to the Federal Property and Administrative Services Act of 1949, as amended, by gift, loan, or sale (A) major items of equipment, including aircraft, motor vehicles, and communication equipment, and (B) necessary related supplies, materials, training aids, and other equipment; “(2) to permit utilization of such services and facilities of the Air Force as in the opinion of the Secretary of the Air Force are required by the Civil Air Patrol to carry out its assigned mission; “(3) to furnish to the Civil Air Patrol such quantities of fuel and lubricants as may be required by it for the purpose of carrying out those missions assigned by the Air Force; “(4) to establish, maintain, supply and equip liaison offices of the Air Force at the National, State, Territorial, and not more than eight regional, headquarters of the Civil Air Patrol, and to detail and assign military and civilian personnel of the Air Force" }, { "docid": "15454", "title": "", "text": "its conclusion about the state of the law in the Circuit on Sierra Club v. Adams, 578 F.2d 389, 392 n.14 (D.C.Cir. 1978) (assumes NEPA applicable to federal construction in Panama; “resolution of this important issue [left] to another day”). . 463 F.2d 1261 (D.C.Cir.1972) (per curiam). . Id. at 1262-63 (citation omitted). . Id. at 1263 (Tamm, J., concurring). . 353 F.Supp. 811 (D. Hawaii 1973). . 42 U.S.C. § 4332(2)(F) (1976). . Enewetak v. Laird, 353 F.Supp. at 818. The court explicitly did not decide the question of extraterritorial application of NEPA into territories within the jurisdiction of some other country. Id. at 817 n. 10. . See note 8 supra and accompanying text. . There are also numerous other cases where courts have been able to avoid the extraterritorial NEPA issue. For example, in Sierra Club v. AEC, 4 Env.L.Rep. 20,685 (D.D.C.1974), the Atomic Energy Commission (whose function was later assumed by the Energy Research and Development Administration (ERDA)), see note 30 supra, voluntarily agreed to provide a worldwide programmatic EIS for United States nuclear exporting. . Sierra Club v. Coleman I, 405 F.Supp. 53 (D.D.C.1975). . 578 F.2d 389 (D.C.Cir.1978). . Sierra Club v. Coleman II, 421 F.Supp. 63 (D.D.C.1976). . 578 F.2d at 391-92 n.14 (quoting government brief). . See id. at 394. . Atomic Energy (McMahon) Act of 1946, 60 Stat. 755 (1946), as amended by Atomic Energy Act of 1954, 68 Stat. 921 (1954), as amended, 42 U.S.C. §§ 2011 et seq. (1976) [hereinafter cited as codified], . NRC is the successor to the old Atomic Energy Commission (AEC). See note 60 infra. . Publ.L.No. 92-242, § 2, 92 Stat. 120 (1978), 22 U.S.C. §§ 3201 et seq. (Supp. II 1978) [hereinafter cited as codified], . 68 Stat. 921 (1954), 42 U.S.C. §§ 2011 et seq. (1976), as amended by NNPA, Pub.L.No. 95-242, § 2, 92 Stat. 120 (1978). NNPA was enacted in 1978 as an amendment to AEA. . There are two NRC orders under review here: Westinghouse Elec. Corp., CLI-80-14, 11 N.R. C. — (May 6, 1980), Joint Appendix (J.App.) 1," }, { "docid": "422261", "title": "", "text": "“in defiance of standards established by Congress to determine when reparations are due”, 337 U.S. at page 435, 69 S.Ct. at page 1415. The difficulty of the task laid upon us as the reviewing court is heightened by the fact that this is the first reparation order (of either positive or negative character) to be accorded direct judicial review. Nor are we assisted by any stat ute expressly setting forth the standards of review which we are to apply in proceedings of the present sort. Our reading of the Supreme Court’s earlier opinion in this case, however, leads us to conclude that we are to apply the standards of judicial review which are generally applicable to administrative action — the standards reflected in the Administrative Procedure Act, § 1 et seq. 5 U.S.C.A. § 1001 et seq., and in such decisions as Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; United States v. Carolina Freight Carriers Corp., 315 U.S. 475, 489, 62 S.Ct. 722, 86 L.Ed. 971; Gray v. Powell, 314 U.S. 402, 412, 62 S.Ct. 326, 86 L.Ed. 301; Rochester Telephone Corp. v. United States, 307 U.S. 125, 129, 59 S.Ct. 754, 83 L.Ed. 1147; and Chicago Junction Case, 264 U.S. 258, 265, 44 S.Ct. 317, 68 L.Ed. 667. Such are the considerations which we have in mind as we examine the contentions of the parties and the findings and conclusions of the Commission. The Government urges two main grounds for its claim to reparation. First of all, it contends that the carriers by tariff undertook to furnish wharfage and handling at the piers in question, and that this obligation survived the cancelation of the lease to the Transport Trading & Terminal Corporation. According to the Government, it constituted a departure from filed tariffs (in violation of Section 6(7) of the Interstate Commerce Act) and an unjust and unreasonable practice (violative of Sections 1(5) and 1(6)) for the railroads to refuse either to perform the services or, in lieu of performance, to make an allowance in accordance with Section 15(113)" }, { "docid": "11965462", "title": "", "text": "Sheppard, 12 Fed.Cas. page 672, Case No. 6,772, Story, J, as Circuit Judge; United States v. Fisher, 6 U.S. 358, 2 Cranch 358, 2 L.Ed. 304; Wagner v. McDonald, 8 Cir., 96 F.2d 273. See Lewis v. United States, 92 U.S. 618, 621, 23 L.Ed 513. See also cases cited supra note 3. Compare DuPont De Nemours & Co. v. Davis, Director General of Railroads, 264 U.S. 456, 44 S.Ct. 364, 68 L.Ed. 788 (statute of limitations may not be asserted against the Director General) with Mellon, Director General v. Michigan Trust Co., 271 U.S. 236, 46 S.Ct. 511, 70 L.Ed. 924 (claim presented in receivership proceedings by the Director General not entitled to priority under R.S. § 3466). 48 Stat. 1240, 12 U.S.C.A. § 1701 et seq. See Executive Order No. 7058, May 29, 1935, 12 U.S.C.A. § 1702 note. 48 Stat. 1246, 12 U.S.C.A. § 1702. 48 Stat. 1246, as amended, 12 U.S.C.A. § 1703(b); 48 Stat. 1248, as amended, 12 U.S.C.A. § 1709; 52 Stat. 16, as amended, 12 U.S.C.A. § 1713. 48 Stat. 1247, 12 U.S.C.A. § 1705; 48 Stat. 1248, 12 U.S.C.A. § 1708. Mellon v. Michigan Trust Co., 271 U.S. 236, 239, 46 S.Ct. 511, 70 L.Ed. 924; DuPont De Nemours v. Davis, 264 U.S. 456, 462, 44 S.Ct. 364, 68 L.Ed. 788. Mellon v. Michigan Trust Co., supra, note 11. United States v. Guaranty Trust Co., 280 U.S. 478, 485, 486, 50 S.Ct. 212, 74 L.Ed. 556. The quotation is from United States v. Marxen, 307 U.S. 200, 206, 207, 59 S.Ct. 811, 814, 83 L.Ed. 1222. Sloan Shipyards Corp. v. United States Fleet Corporation, 258 U.S. 549, 570, 42 S.Ct. 386, 66 L.Ed. 762; Continental Illinois National Bank & Tr. Co. v. Chicago Rock Island & Pacific Ry. Co., 294 U.S. 648, 684, 55 S.Ct. 595, 79 L.Ed. 1110 (semble). But cf. Inland Waterways Corp. v. Young, Recr., 60 S.Ct. 646, 84 L.Ed. 901, decided March 25, 1940. “ * * * because certain financial institutions hesitated to make insured loans, lest there might be defaults which could not be prosecuted because" }, { "docid": "9513779", "title": "", "text": "VAN OOSTERHOUT, Circuit Judge. This is a timely appeal from final judgment of the district court upholding the determination made by the Secretary of Health, Education and Welfare, that the plaintiff Lulu Nettie Foster is not entitled to old-age benefits under the Social Security Act, 42 U.S.C.A. § 401 et seq., and from the court’s denial of motion to remand for further consideration and additional evidence. The plaintiff has exhausted her administrative remedies. The district court and this court have jurisdiction. 42 U.S.C.A. § 405(g); 28 U.S.C.A. § 1291. The principal issue presented is whether the Secretary and the district court erroneously determined that there was no arrangement for material participation by the plaintiff farm owner in the management of production of income from agricultural products. The basic question presented is whether Mrs. Foster’s income from operation of her farm qualified for “net earnings from self-employment” under 42 U.S.C.A. § 411(a) (1) as amended in 1956. Mrs. Foster has reported such income as self-employment income for 1956 and 1957 and paid the Social Security tax thereon. It is conceded that Mrs. Foster has met all the requirements for old-age benefits if her farm returns qualify as net earnings from self-employment. At the administrative level, it was finally determined that the earnings from the farm did not qualify as self-employment income for two reasons: (1) There was no arrangement for material participation in the production or management of agricultural commodities. (2) There was in fact no material participation by plaintiff in the production or management of production. The Secretary’s second reason assumed that personal participation by Mrs. Foster was required and that participation by an agent could not be considered. The Secretary in his brief states: “During the pendency of this appeal the Secretary has changed his position on the issue of ‘vicarious participation’ and, accordingly, no longer contends that appellant could not materially participate through an agent.” This is in accord with Harper v. Flemming, 4 Cir., 288 F.2d 61, and Henderson v. Flemming, 5 Cir., 283 F.2d 882. The Secretary in oral argument conceded that for the purposes of" }, { "docid": "12039142", "title": "", "text": "“1. The Federal Public Housing Authority is an agency and instrumentality of the United States, created by Executive Order No. 9070, February 24, 1942, 50 U.S.C.A.Appendix, § 601 note, pursuant to which Order it administers the functions, powers and duties, of the Federal Works Administration, under the Act of Congress of October 14, 1940, c. 802, 54 Stat. 1125, as amended, 42 U.S.C.A. § 1521, known as the ‘Lanham Act.’ “2. The Philadelphia Housing Authority is a body politic and corporate, created under the Housing Authorities Law of the Commonwealth of Pennsylvania of May 28, 1937, P.L. 955, 35 P.S.Pa. § 1541 et seq., and acts as agent of the United States of America, through the Federal Public Housing Authority, in the construction of housing projects under the provisions of the Lanham Act.” The authority of the Philadelphia Housing Authority to act in-this matter is not in issue. See 42 U.S.C.A. § 1545 and 35 P.S.Pa. 1550(g). Congress at one time or another provided for three housing bodies, the similarity of whose names can create confusion: (a) The Federal Housing Administration, created by the National Housing Act of 1934, 12 U.S.C.A. § 1701 et seq., operated principally in the field of housing insurance. This was the agency involved in the Burr and Union National Bank cases. The complaint of plaintiff erroneously cites this statute as that under which the case at bar arises. (b) The United States Housing Authority, created by the United States Housing Act of 1937, 42 U.S.C.A. § 1401 et seq., was established to furnish low-rent housing. (e) The Act of October 14, 1940 (“Lanham Act”), 42 U.S.C.A. § 1521 et seq., aimed to supply defense housing. These three agencies, along with others, were consolidated into the National Housing Agency by Executive Order No. 9070, 50 U.S.C.A.Appendix, § 601 note. The National Housing Administrator, head of this new organization, was granted the powers of the heads of the consolidated agencies. Prior to this time, the Federal Plousing Administrator could “sue and be sued in any court of competent jurisdiction,” 12 U.S.C.A. § 1702; the United States Housing" }, { "docid": "15455", "title": "", "text": "United States nuclear exporting. . Sierra Club v. Coleman I, 405 F.Supp. 53 (D.D.C.1975). . 578 F.2d 389 (D.C.Cir.1978). . Sierra Club v. Coleman II, 421 F.Supp. 63 (D.D.C.1976). . 578 F.2d at 391-92 n.14 (quoting government brief). . See id. at 394. . Atomic Energy (McMahon) Act of 1946, 60 Stat. 755 (1946), as amended by Atomic Energy Act of 1954, 68 Stat. 921 (1954), as amended, 42 U.S.C. §§ 2011 et seq. (1976) [hereinafter cited as codified], . NRC is the successor to the old Atomic Energy Commission (AEC). See note 60 infra. . Publ.L.No. 92-242, § 2, 92 Stat. 120 (1978), 22 U.S.C. §§ 3201 et seq. (Supp. II 1978) [hereinafter cited as codified], . 68 Stat. 921 (1954), 42 U.S.C. §§ 2011 et seq. (1976), as amended by NNPA, Pub.L.No. 95-242, § 2, 92 Stat. 120 (1978). NNPA was enacted in 1978 as an amendment to AEA. . There are two NRC orders under review here: Westinghouse Elec. Corp., CLI-80-14, 11 N.R. C. — (May 6, 1980), Joint Appendix (J.App.) 1, and Westinghouse Elec. Corp., CLI-80-15, 11 N.R.C. — (May 6, 1980), J.App. 3 [hereinafter cited as Jurisdictional Decision ]. The content of each is discussed in Judge Wilkey’s opinion, text at notes 5-8. The second order was accompanied by four separate opinions, the plurality opinion of Commissioners Kennedy and Hendrie, along with that of Commissioner Gi-linsky comprised the majority; Commissioner Bradford and Commissioner Ahearne dissented, each providing a statement of his reasons. For a summary of the nature of each opinion, see Wilkey Opinion (Wilkey Op.), text at notes 18 — 44. . See Brief for Petitioners at 14. That country’s only prior experience with nuclear power was limited to a small research reactor installed at the Philippines Atomic Research Center. Id. . See 42 U.S.C. §§ 2155-2157 (Supp. II 1978). The statutory scheme of the Nuclear Nonproliferation Act is discussed in text infra at notes 47-54. . 124 Cong.Rec. S1067 (daily ed. Feb. 2, 1978) (remarks of Senator Glenn), Congressional Research Service Legislative History of the Nuclear Nonproliferation Act of 1978, at 775 [hereinafter" }, { "docid": "23507661", "title": "", "text": "(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.” 80 Stat. 393, 5 U.S.O.A. § 706(2). . Christensen, “Union Discipline Under Federal Law: Institutional Dilemmas in an Industrial Democracy”, Symposium, 43 N.Y.U.L.Rev. 227, 253 (1968). . The National Labor Relations Act (popularly known as the Wagner Act), 49 Stat. 449, 29 U.S.C.A. § 151 et seq. (1935). This statute was amended and supplemented by the Labor Management Relations Act, 1947 (popularly known as the Taft-Hartley Act), 61 Stat. 136, 29 U.S.C.A. § 141 et seq. (1947), and later amended again by the LMRDA of 1959, 73 Stat. 519, Title II, §§ 201(d) and (e), and Title V, § 505, and Title VII. The balance of Titles II and V and all of Titles I, III, IV, and VI, of the LMRDA constitute original legislation. . Washington, Virginia & Maryland Coach Co. v. National Labor Relations Board, 301 U.S. 142, 57 S.Ct. 648, 81 L.Ed. 965 (1937) ; Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126 (1938) ; National Labor Relations Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 83 L.Ed. 660 (1939) ; Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951). . 5 U.S.C.A. § 706(2) (E). The Senate Judiciary Committee had reported : “The ‘substantial evidence’ rule set forth in Section 10(e) is exceedingly important. As a matter of language, substantial evidence would seem to be an adequate expression of law. The difficulty comes about in the practice of agencies to rely upon (and of courts to tacitly approve) something less — to rely upon suspicion, surmise, implications, or plainly incredible evidence. It will be the duty of the cpurts to determine in the final analysis and in the exercise" }, { "docid": "11253211", "title": "", "text": "and need for orderly administrative procedure helped shape the doctrine.” (See United States v. Fritz Properties, 89 F.Supp. 772, 777 (N.D.Calif.1950). . § 1 of the Civil Rights Act of 1866, reenacted Act of May 31, 1870, 16 Stat. 140, was later divided into two sections, §§ 1977 and 1978, which presently constitute 42 U.S.C.A. §§ 1981 and 1982. Today’s 42 U.S.C.A. § 1983 finds its antecedent in § 1 of the Act to Enforce the Provisions of the Fourteenth Amendment, 17 Stat. 13 (1871). See People of State of New York v. Galamison, 342 F.2d 255, 260 (2nd Cir. 1965). . Konvitz, A Century of Civil Rights (1962) at p. 63. A cursory examination of any compilation of cases under the Act attests that racial discrimination was the primary evil of the Act was intended and used to remedy. See e.g., 42 U.S.C.A. 1981, et seq. and especially 42 U.S.C.A. § 1983, n. 135. . See 42 U.S.C.A. § 1971 (e) (voting rights); 42 U.S.C.A. § 2000a (public facilities). . “He [the convicted felon) has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being the slave of the State.” See Ruffin v. Commonwealth, 62 Va. (21 Gratt.) 790, 796 (1871) quoted in Note, 110 U. of P. Law Rev. 985 (1961-62). See also People v. Russell, 245 Ill. 268, 91 N.E. 1075 (1827) where the Supreme Court of Illinois added this thought: “there follows, from the judgment (of conviction) a loss of civil rights, * * *. He has become an alien in his own country * * . See e.g.. State of Oregon ex rel. Sherwood v. Gladden, 240 F.2d 910 (9th Cir. 1957); United States ex rel. Atterbury v. Ragen, 237 F.2d 953 (7th Cir. 1956); Pierce v. La Vallee, 293 F.2d 233 (2nd Cir. 1961) and cases cited therein. . Ortega v. Ragen, 216 F.2d 561 (7th Cir. 1954), cert. den., 349 U.S. 940, 75 S.Ct. 786, 99 L.Ed. 1268 (1955); United" }, { "docid": "10658536", "title": "", "text": "512, 513 (E.D.Pa.1946). . 33 U.S.C.A. §§ 401, 406. . 33 U.S.C.A. § 404. . 33 U.S.C.A. §§ 403, 409, 414-415. . 33 U.S.C.A. § 407. . 33 U.S.C.A. § 408. . 33 U.S.C.A. §§ 411-413. . See Acme Boat Rentals v. J. Ray Mc-Dermott & Co., 424 F.2d 393 (5th Cir. 1970); Tatum v. Blackstock, 319 F.2d 397 (5th Cir. 1963); Neches Canal Co. v. Miller & Vidor Lumber Co., 24 F.2d 763 (5th Cir. 1928); Converse v. Portsmouth Cotton Oil Ref. Co., 281 F. 981 (4th Cir. 1922); American Zinc Co. v. Foster, 313 F.Supp. 671 (S.D.Miss.1970); Lauritzen v. Chesapeake Bay Bridge & Tunnel District, 259 F.Supp. 633 (E.D.Va.1966); Gulf Atlantic Transportation Co. v. Becker County Sand & Gravel, 122 F.Supp. 13 (E.D.N.C.1954); Maier v. Publicker Commercial Alcohol Co., 62 F.Supp. 161 (E.D. Pa.1945); Chatfield v. City of New Haven, 110 F. 788 (D.Conn.1901). . See, e. g., H. Christiansen & Sons, Inc. v. City of Duluth, 154 F.2d 205 (8th Cir. 1946) and Chambers-Liberty Counties Nav. Dist. v. Parker Bros & Co., 263 F.Supp. 602 (S.D.Tex.1967). . See United States v. Republic Steel Corp., 362 U.S. 482, 486, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960). . 26 Stat. 453. . 28 Stat. 363; 33 U.S.C.A. § 407 at p. 101 (1970). . United States v. Republic Steel Corp., 362 U.S. 482, 491, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960). . 45 U.S.C.A. § 1 et seq. . 45 U.S.C.A. § 51 et seq. . Crane v. Cedar Rapids & I. C. R. Co., 395 U.S. 164, 89 S.Ct. 1706, 23 L.Ed.2d 176 (1969); Jacobson v. N. Y., N. H. & H. R. Co., 206 F.2d 153 (1st Cir. 1953) aff’d 347 U.S. 909, 74 S.Ct. 474, 98 L.Ed. 1067 (1959); Andersen v. Bingham & G. Ry. Co., 169 F.2d 328 (10th Cir. 1948); Owens v. N. Y. C. R. Co., 267 F.Supp. 252 (E.D.Ill.1967); Boncek v. Penn R. Co., 105 F.Supp. 700 (D.N.J.1952) . 42 U.S.C.A. §§ 4331-4347. . 16 U.S.C.A. §§ 661, 662." }, { "docid": "13948767", "title": "", "text": "and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of theUnited States, whether with or without compensation. * * * June 25, 1948, c. 646, 62 Stat. 982, amended May 24, 1949, c. 139, § 124, 63 Stat. 106.” . 60 Stat. 346, c. 527, Title 36 U.S.O.A. §§ 201-208. . Title 36 U.S.C.A. § 205. . Title 36 U.S.C.A. § 202 — “(a) To provide an organization to encourage and aid American citizens in the contribution of their efforts, services, and resources in the development of aviation and in the maintenance of air supremacy, and to encourage and develop by example the voluntary contribution of private citizens to the public welfare; “(b) To provide aviation education and training especially to its senior and cadet members; to encourage and foster civil aviation in local communities and to provide an organization of private citizens with adequate facilities to assist in mooting local and national emergencies. July 1, 1940, c. 527, § 2, 60 Stat. 346.” . Title 36 U.S.C.A. § 204(a). . Title 31 U.S.C.A. § 841 et seq. . A complete list of such corporations (Commodity Credit Corporation; Federal Housing Administration, to mention some typical ones) is shown in 31 U.S. C.A. § 846 as last amended by the act of May 13, 1954, c. 201, § 6, 68 Stat. 95. . Title 31 U.S.C.A. § 856 et seq., Act of Dec. 6, 1945, c. 557, Title II, 59 Stat. COO. . Title 36 U.S.C.A., Patrotic Societies and Observances. . The quotation is from the complaint. . Alexander v. Civil Air Patrol, D.C., 134 F.Supp. 691. . “§ 626(1). Civil Air Patrol-Establishment as auxiliary “The Civil Air Patrol is established as a volunteer civilian auxiliary of the Air Force. To assist the Civil Air Patrol in the fulfillment of its objectives as set out in section 202 of Title 36, the Secretary of the Air Force is authorized, under such regulations as he may prescribe with the approval of the Secretary of Defense— “(1) to furnish to the Civil Air" }, { "docid": "2131483", "title": "", "text": "to all types of executive action. Even if such a prayer for mandatory direction ran only to a civilian matter which had none of the elements of a military affair, the courts would have no authority in respect to it. Affirmed. . 62 Stat. 604 (1948), 65 Stat. 75 (1951), as amended, 50 U.S.C.A.Appendix, § 451 et seq. . Harmon v. Brucker, D.C., 137 F.Supp. 475 (1956). . Act of June 22, 3944, 58 Stat. 288, as amended, 38 U.S.O.A. § 6931i. . Art. II, § 2, cl. 1. . Art. I, § 8, cl. 14. . 10 U.S.C. § 3012 (3956) [formerly 5 U.S.C.A. § 181-4, 64 Stat. 264 (1950). . 41 Stat. 809 (1920), as amended, 10 U.S. C.A. § 652a (Supp. 1956) [now 10 U.S. C. § 3811 (1956)]. . Winthrop, Military Law and Precedents 547, 931, 933, 961, 972 (2d ed. 1920) ; Act of April 10, 1800, 2 Stat. 359, 361; Rev.Slat. § 1342, Art. 4 (2d ed. 1878); Sec. 4(b), Selective Service Act of 1948, 62 Stat. 606, as amended, 50 U.S.C.A. Appendix, § 454(b). . Supra note 3. . United States v. Eliason, 16 Pet. 291, 41 U.S. 291, 301-302, 10 L.Ed. 968 (1842) ; Reaves v. Ainsworth, 219 U.S. 296, 304, 306, 31 S.Ct. 230, 55 L.Ed. 225 (1911), affirming 28 App.D.C. 157 (D.C.Cir. 1908) ; Creary v. Weeks, 259 U.S. 336, 42 S.Ct. 509, 66 L.Ed. 973 (1922); French v. Weeks, 259 U.S. 326, 42 S.Ct. 505, 66 L.Ed. 965 (1922); Reid v. United States, 161 F. 469 (D.C.S.D.N.Y.1908), writ of error dismissed, 211 U.S. 529, 29 S.Ct. 171, 53 L.Ed. 313 (1909); Davis v. Woodring, 72 App.D.C. 83, 111 F 2d 523 (D.C.Cir.1940) ; Schustack v. Horren, 234 F.2d 134 (2 Cir. 1956); Nelson v. Peckham, 210 F.2d 574 (4 Cir. 1954); Bernstein v. Herren, 136 F.Supp. 493 (D.C.S.D.N.Y.1955), Id., 141 F.Supp. 78 (D.C.S.D.N.Y.1956), affirmed 234 F.2d 434 (2 Cir. 1956) ; Weeks v. United States, 51 App.D.C. 195, 277 F. 594 (D.C. Cir.1922), affirmed sub nom. Creary v. Weeks, 259 U.S. 336, 42 S.Ct. 509, 66 L.Ed. 973, (1922);" } ]

[ { "docid": "18942706", "title": "", "text": "OPINION Tietjens, Judge: Respondent determined a deficiency of $193,910.67 in petitioners’ Federal income taxes for 1972. The issues are whether the redemption of petitioners’ corporate stock qualifies as an installment sale under section 453, and, if so, whether petitioners can now change to a cost recovery method of accounting after electing to report under the installment method. This case was fully stipulated pursuant to Rule 122, Tax Court Rules of Practice and Procedure. The stipulation of facts and attached exhibits are incorporated herein by reference. When they filed their petition, petitioners resided in Hampton, N. H. Petitioners filed their joint Federal income tax return for 1972 with the Director of the Internal Revenue Service Center in Andover, Mass. Petitioners used the cash receipts and disbursements method of accounting for 1972. Until 1972, petitioner Fred M. Stiles (hereafter referred to as petitioner) and Charles Rosen were the equal owners of four companies. Two of the companies, Plywood Ranch Industries, Inc. (PRI), and Fort Kent Fence Co., Inc. (Fort Kent), are corporations. The other two, Retailers Realty Trust (Retailers), and Hyway Realty Trust (Hyway), are Massachusetts business trusts. Apparently petitioners and respondent have agreed to treat the trusts as corporations for purposes of this case. Cf. sec. 301.7701-4(b), Proced. & Admin. Regs. During 1972, petitioner and Rosen sued each other because of disputes over the operations of their companies. In settlement of those disputes, they entered into an agreement in which petitioner would sell his entire interest in the four companies to the companies themselves. Thus the companies effectively agreed to redeem petitioner’s stock. See sec. 317(b). The agreement was executed on August 16,1972, and provided for a total redemption price of $900,000 ($400,000 from PRI, $10,000 from Port Kent, $440,000 from Retailers, and $50,000 from Hyway). Apparently some adjustments were later made because the total consideration is stipulated to be $845,000 ($405,000 from PRI and $440,000 from Retailers). It is also unclear whether any separate consideration was paid for petitioner’s stock in Fort Kent and Hyway. We presume that although those companies were part of the entire redemption transaction, the tax" } ]

[ { "docid": "16622850", "title": "", "text": "the transaction through the potential increase in the value of the trusts’ corpora (the mutual fund shares) in excess of the total amounts needed to pay the notes to petitioner. The trusts were irrevocable and had a substantial independent interest in entering the transaction: the opportunity to profit from the investment of funds obtained at a relatively low interest rate and repayable over a long period of years. Upon careful consideration of all the evidence, we conclude that petitioner in 1972 made a bona fide sale of his 21,500 shares of Arvin stock to independent trusts and is entitled to report his gain from the sale under the installment method of accounting. To reflect the disposition of other issues, Decision will be entered under Rule 155. Unless otherwise indicated, all section references are to the Internal Revenue Code of 1954, as in effect during the tax year in issue. References herein to petitioner in the singular are to William D. Pityo, his wife being a party to this case solely by reason of having filed a joint return with her husband for the year in question. In Rushing v. Commissioner, 441 F.2d 593, 598 (5th Cir. 1971), affg. 52 T.C. 888 (1969), the court said: “a taxpayer may, if he chooses, reap the tax advantages of the installment sales provision if he actually carries through an installment sale, even though this method was used at his insistence and was designed for the purpose of minimizing his tax.” See also Williams v. United States, 219 F.2d 523, 527 (5th Cir. 1955); Pozzi v. Commissioner, 49 T.C. 119, 128 (1967). In Fincke v. Commissioner, 39 B.T.A. 510, 514 (1939), the taxpayer sold stock to trusts for his wife and children at his cost, and the trusts resold the stock on the open market at a higher price. The notice of deficiency treated the transaction in part as a sale and in part as a gift. Rejecting the Commissioner’s allegation in his amended answer, similar to the position taken in the instant case, that the taxpayer in reality sold the shares on the" }, { "docid": "10458072", "title": "", "text": "similarity between the facts herein and those established in Nye, we find several distinguishing features which place petitioners outside the carefully drawn guidelines described in that case. Foremost among these discrepancies is the apparent absence of any independent purpose underlying Mrs. Wrenn’s purchase of the specified securities from her husband. Our concern is not focused upon the lack of a \"business purpose,” but upon the lack of any apparent substantive purpose. A valid business purpose undoubtedly would suffice, but more personal motivations could indicate a bona fide transaction as well. Mrs. Wrenn obviously did not purchase the common shares' from her husband for their intrinsic value because she proceeded to sell them immediately after receiving title to them. Nor did she regard them as a means of obtaining needed funds at a low rate of interest, a situation held to evidence a bona fide purpose in Nye, because petitioners have not advanced any particular requirement for funds on her part. While the record indicates that she may have used the sales proceeds to purchase mutual fund shares, it also indicates that she only purchased those shares to satisfy the security requirement in her contract of purchase with Mr. Wrenn and not for any particular reason associated with their intrinsic value. Indeed, a review of the supporting schedules petitioners filed with their 1973 income tax return reveals that Mrs. Wrenn engaged in a regular program of monthly sales of mutual fund shares after April 1, 1973, which was carefully structured to generate just enough cash to enable her to meet her required monthly principal and interest payments. Even if we were to ignore the aforementioned security requirement, this course of action in conjunction with her substantial net worth would effectively negate any implication that Mrs. Wrenn desired to own the mutual fund shares for any particular personal or business reason. We acknowledge that business and investment climates may change drastically in a very short period of time and that original intentions may change accordingly. Petitioners have not presented any evidence on this point, however, so we must assume that both business" }, { "docid": "10552077", "title": "", "text": "on, or proceeds from sales of some of, the Goodlass stock, nor did it report any amount as income in its 1951 return on account of the receipt in 1951 by Hoyt Metal of proceeds of sales of some of the Goodlass stock. In the notice of deficiency the respondent disallowed as a deduction for 1952 the claimed loss of $568,755.64 with the following explanation: It is Reid that your alleged sale of 421,036 ordinary shares of stock of Good-lass Wall & Lead Industries, Ltd. to your wholly owned foreign subsidiary, namely, Hoyt Metal Company of Great Britain, Ltd., on December 14, 1937, for the price of £257,884-11-0, is invalid for Federal income tax purposes for the reasons that such transaction was not bona fide and at arm’s length and was without business purpose. ******* Accordingly, it has * * * been determined that your claimed foreign exchange losses, allegedly incurred on the payments made by your wholly owned subsidiary in settlement of the aforementioned purchase price, said losses totalling $11,188.14 for prior years and $557,567.50 for the current year, are not allowable under any provisions of the Internal Revenue Code of 1939. In the alternative, if it is determined that your sale of the aforementioned 421,036 ordinary shares of stock of Goodlass Wall & Lead Industries, Ltd. to your wholly owned foreign subsidiary was a valid arm’s length transaction, it is held that if any losses are allowable, only the sum of $557,567.50 applicable to current year payments may be considered properly allowable as a foreign exchange loss and then only to the extent of a long-term capital loss rather than as an ordinary loss as claimed on your return. In the notice of deficiency the respondent also, for the same reason, determined that dividends in the amount of $59,666.11 paid by Good-lass to Hoyt Metal in 1952 were taxable to the petitioner, and increased the petitioner’s reported net income by that amount. The respondent also determined in such notice, for the same reason, that long-term capital gains of $68,681.16 and $213,164.91 were realized by the petitioner in the" }, { "docid": "9746588", "title": "", "text": "of the apartment property; or that his purpose in creating this large indebtedness was in any way related to the business of operating such property. Thereafter, in October of the same year 1952, he organized a new corporation; and, in exchange for all its shares of capital stock, he transferred the apartment property to such corporation, subject to the large mortgage debt for which he was personally liable. The effects of the aforesaid transactions, considered entirely apart from his motives or purposes, were as follows: (1) He, as before stated, obtained tax free and in cash, about five-sixths of the appreciated value of the apartment property, although he was still personally liable for repayment — and the proceeds approximated the amount after income taxes, which he could have realized from a cash sale of the property; (2) he also obtained all of the stock of the new corporation — which represented, in substance, his net equity in the property transferred; (8) any earnings and profits derived by the new corporation could thereafter be applied by it toward removing the mortgage encumbrance on its property — thereby eliminating the necessity for it to issue taxable dividends to petitioner; (4) if the corporation did apply its earnings toward clearing the mortgage, petitioner’s shares of stock therein would be likely to appreciate in value; and (5) if petitioner sold his shares of stock, his basis for computing gain on such sale would not (as is shown in the Court’s Opinion herein) reflect a basis decrease equal to the full amount of the mortgage — so that part of his actual realized gain would never (unless the Court’s method of splitting the gain is valid) be subjected to income tax. I think that this is the precise type of situation which Congress intended to eliminate, by expressly imposing the heavy burden of proof on the taxpayer, in respect of absence of a principal purpose “to avoid Federal income tax,” and the presence of “a bona fide business purpose.” 4. This Court, in the majority Opinion herein, has made reference to five purposes of the" }, { "docid": "14376414", "title": "", "text": "the consideration and such a transaction is not an installment sale and cannot be reported on the installment basis. Cf. Walter I. Bones, 4 T. C. 415, 422-423. In 1948, the petitioner corporation was not regularly selling on the installment plan. The Talco sale was apparently the only contract in that year in which it agreed to accept the purchaser’s notes for the payment of the contract. This single aberration in the policy of the company made necessary by the particular exigencies of one customer does not establish a pattern for the year. Upon receipt of Talco’s notes, which were treated on the corporation’s books as having full face value, the petitioner, being on the accrual basis, realized the full proceeds of the sale and was obliged to report the full gain thereon in 1948. This was a completed present sale with payment deferred, not an installment sale, and, therefore, such amounts as were received in 1949 on account of payment of the Talco notes do not have to be included by the petitioner corporation in reporting its income from installment sales in that year. Revie wed by the Court. Decisions will Toe entered under Rule 50. SEC. 117. CAPITAL GAINS AND LOSSES. (a) Definitions. — As used in this chapter— (1) Capital Assets. — The term “capital assets” means property held by the taxpayer (whether or not connected with his trade or business), but does not include stock in trade of the taxpayer or other property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the taxable year, or property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business, * * * Cf. Boomhower v. United States, 74 P. Supp. 997. For 1946 the amount disallowed Joseph Greenspon’s Son Pipe Corporation results in additional income to that corporation and a deficiency which is claimed from Louis Green-spon as transferee. He does not contest transferee liability. (Docket No. 39403.) No additional income has been attributed to Louis Greenspon in" }, { "docid": "22061526", "title": "", "text": "payments received from rentals as the gain from the sale of capital assets. The Commissioner, however, asserted the payments were taxable as ordinary income and were not capital gain within the meaning of I. R. C. 1939, § 117 (a)(4) and I. R. C. 1954, § 1222 (3). These sections provide that “[t]he term ‘long-term capital gain’ means gain from the sale or exchange of a capital asset held for more than 6 months . . . .” In the Tax Court, the Commissioner asserted that the transaction was a sham and that in any event respondents retained such an economic interest in and control over the property sold that the transaction could not be treated as a sale resulting in a long-term capital gain. A divided Tax Court, 37 T. C. 461, found that there had been considerable good-faith bargaining at arm’s length between the Brown family and the Institute, that the price agreed upon was within a reasonable range in the light of the earnings history of the corporation and the adjusted net worth of its assets, that the primary motivation for the Institute was the prospect of ending up with the assets of the business free and clear after the purchase price had been fully paid, which would then permit the Institute to convert the property and the money for use in cancer research, and that there had been a real change of economic benefit in the transaction. Its conclusion was that the transfer of respondents’ stock in Clay Brown & Company to the Institute was a bona fide sale arrived at in an arm’s-length transaction and that the amounts received by respondents were proceeds from the sale of stock and entitled to long-term capital gains treatment under the Internal Revenue Code. The Court of Appeals affirmed, 325 F. 2d 313, and we granted certiorari, 377 U. S. 962. Having abandoned in the Court of Appeals the argument that this transaction was a sham, the Commissioner now admits that there was real substance in what occurred between the Institute and the Brown family. The transaction was a" }, { "docid": "17777371", "title": "", "text": "disposed of in such a manner as to prevent application of capital gain rates, notably, disposed of as stock in trade of the taxpayer or property of a kind properly includible in the taxpayer’s inventory if on hand at the close of the year or held primarily for sale to customers in the ordinary course of trade or business. In such cases the property would not be capital assets under section 117 (a) (1) and sale thereof would not cause application of capital gain rates. But even assuming that the property retains character as capital assets it must in order for capital gain rates to apply be sold or exchanged within section 117 (a). There was no sale or exchange here. Seeing nothing to prevent a taxpayer from so dealing with property, received by him in the liquidation comprehended in section 112 (b) (7) in a manner other than sale or exchange thereof we are unable to agree with the petitioner’s view that capital gain rates ¡necessarily apply because of liquidation under that section. In this connection we note that the stipulated facts inform us of the amount of collections, the cost of the items upon which collections were made, and the net amount realized. A portion of the $12,034.45 collected may have been interest, such as discussed and distinguished in the Carter case, supra, with citation of Helvering v. Manhattan Life Insurance Co., 71 F. 2d 292. In such event, the amounts thereof would not appear to partake of the character of capital receipts. In any event, we conclude and hold, after much examination of this novel question as to the effect of a distribution under section 112 (b) (7), that the later collections here involved upon the distributed properties were not subject to taxation at capital gain rates but were ordinary income. This conclusion makes it unnecessary for us also to consider the respondent’s contention that the amounts received were ordinary income because the petitioner received them in the course of his regular business, that of a promoter seeking businesses to purchase, to operate for a short time," }, { "docid": "16622835", "title": "", "text": "market in 1972 and that petitioner is, therefore, taxable in that year on the full amount of the realized gain attributable to the portion of the shares resold. We hold for petitioner. The precise issue to be decided must be borne in mind. Respondent does not contend that petitioner is attempting to convert what would be ordinary income into capital gain. The parties agree that the gain on the sale of the Arvin stock is subject to capital gain treatment. Nor is petitioner attempting to shift some of his income to the trusts or some other entity. Petitioner acknowledges, expressly or implicitly, that all gain on his sale of the Arvin stock to the trusts is taxable to him. The only question is whether petitioner must pay an income tax on the gain at the time of the trusts’ sales of 15,400 shares in 1972, or only in later years when he actually receives the installment payments on the trusts’ notes. The answer to that question depends on whether, as contended by respondent, the trustee was a mere conduit of title for petitioner’s sale of the Arvin stock on the open market, or whether petitioner made a completed sale of the stock to the trusts without retaining control over the trusts or the proceeds realized by them from the subsequent open-market sales. Respondent is on solid ground in arguing that careful scrutiny must be given the entire transaction between petitioner and the trusts to ascertain the realities. “A sale by one person cannot be transformed for tax purposes into a sale by another by using the latter as a conduit through which to pass title.” Commissioner v. Court Holding Co., 324 U.S. 331, 334 (1945). Respondent is equally correct in pointing out that taxation is not so much concerned with “the refinements of title” as it is with the actual “command over the property taxed” and that such command may be exercised directly or through “the creation of a new equitable but controlled interest, or the maintenance of effective benefit through the interposition of a subservient agency.” Griffiths v. Commissioner," }, { "docid": "10458061", "title": "", "text": "the terms of the installment sales contract, Mrs. Wrenn agreed to pay $250,000 for the securities, plus interest at 5 percent, in monthly payments of $1,926.98 for a period of 15 years beginning on April 1, 1973, to evidence her obligation by issuing Mr. Wrenn a promissory note, and to provide him with security for the payment of the agreed price by purchasing $250,000 in shares of the Fidelity Trend Fund. Each monthly payment represented amortized amounts of principal and interest. Mrs. Wrenn evidenced her obligation by means of a promissory \"Installment Note” which she gave Mr. Wrenn on the date of transfer. Once the contract of sale was executed, the securities sold thereby were subject to disposition solely at the will or whim of their new owner, Dorothy W. Wrenn. Mrs. Wrenn was under no obligation, contractual or otherwise, to dispose of such securities other than at her pleasure. All of the securities purchased by Mrs. Wrenn from her husband on January 21, 1973, subsequently were sold by her on the open market during that same day for $250,874. Mrs. Wrenn had made numerous investments of her separate property in mutual funds prior to the instant transaction. As agreed in the sales contract, Mrs. Wrenn proceeded to purchase shares in the Fidelity Trend Fund worth $250,000 after the purchase of common stocks from her husband had been completed. Petitioners reported portions of the installment payments received by Philip Wrenn during the calendar year 1973 as long-term capital gains on Schedule D of that year’s return. Respondent subsequently rejected petitioners’ use of the installment method on the ground that the purported installment sale lacked substance and could not be recognized for tax purposes. Citing Mrs. Wrenn’s immediate resale of the shares purchased from her husband, respondent determined that no \"business purpose” had been established for the transaction, that a \"sale by one person cannot be transformed for tax purposes into a sale by another by using the latter as a conduit through which to pass title,” and that \"the install ment method may not be used to report the gain" }, { "docid": "6133953", "title": "", "text": "the trust and joint venture agreements as determinative of the issue. The escrow agreement as in Pozzi v. Commissioner, supra, is evidence of petitioner’s retention of control over the proceeds of the sale. As noted, this agreement forced Bruce to sell the stock purchased from petitioner, to reinvest the entire proceeds of that sale in Sigma shares and to deposit 89,322 shares of that fund with the escrow agent. The escrow agreement further dictated that the monthly payment to petitioner of $10,302.61 was to be paid out of the income dividends derived from such shares or from capital gains distributions or proceeds of liquidation of such shares. The record fails to disclose the amount of income which accrued from the investment in the Sigma stock or the breakdown of the distribution of such income. While we admire Bruce’s candor, he testified that in case of an emergency he would convey the shares remaining in escrow to his father. We find that petitioner failed the Rushing test based on his constructive receipt in 1971 of the entire proceeds of the sale of his Cooper stock arising out of his use of his son as his agent to make the sale and his beneficial use of an escrow account. Hence, he is not entitled to the deferred tax treatment offered by section 453. Decision will be entered under Rule 155. SEC. 1001(a). Computation of Gain or Loss. — The gain from the sale or other disposition of property shall be the excess of the amount realized therefrom over the adjusted basis * * * SEC. 446 (a). General Rule. — Taxable income shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books. SEC. 453. INSTALLMENT METHOD. (a) Dealers in Personal Property.— (1) In general.— * * * a person who regularly sells or otherwise disposes of personal property on the installment plan may return as income therefrom in any taxable year that proportion of the installment payments actually received in that year which the gross profit, realized or to" }, { "docid": "16827231", "title": "", "text": "OPINION Raum, Judge: Petitioners argue that Triton’s losses from trading in securities, particularly its losses on short sales, must be treated as ordinary losses rather than capital losses. We disagree. The proper classification of the net loss in question does not depend upon the number of transactions or the degree of trading activity or the fact that the principal component of the net loss was attributable to the short sales. Rather, it depends upon whether the securities sold in connection with the regular sales and the securities used to close the short sales constituted “capital assets” within the meaning of section 1221 of the 1954 Code. The term “capital asset” is defined therein, subject to certain exceptions, to mean “property held by the taxpayer (whether or not connected with his trade or business).” Accordingly, the question before us is whether any of those excep tions are applicable. And the only exception of any possible pertinence is contained in subsection (1) of section 1221 which provides that the term “capital asset” does not include— (1) stock in trade of the taxpayer or other property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the taxable year, or property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business; The securities involved herein do not qualify for exclusion under the foregoing provisions. Certainly, they were not “stock in trade * * * or other property of a kind which would properly be included in the inventory of the taxpayer.” Triton was not a dealer or merchant regularly engaged in the sale of securities to customers in the ordinary course of its trade or business. It did not use inventories in determining income and indeed was not entitled to do so under regulations of the Commissioner which permit their use by dealers in securities and expressly provide that taxpayers “who buy and sell or hold securities for investment or speculation, irrespective of whether such buying or selling constitutes the carrying on of a" }, { "docid": "6133951", "title": "", "text": "pertains herein. For example, petitioner has overlooked a second line of cases wherein an escrow account was used to secure the sellers receipt of the installment payments. This line of cases is exemplified by Pozzi v. Commissioner, 49 T.C. 119 (1967), wherein this Court found an installment sale of property secured by funds placed in escrow resulted in the constructive receipt of the entire purchase price in the year of sale which disqualified him from the use of section 453 reporting. A constructive receipt of the purchase price would cause the taxpayer to fail the Rushing test because of his control over the proceeds of the sale. Here, since it is clear that Bruce did not have sufficient assets with which to purchase the Cooper stock on the installment, or any other, basis, it is no wonder that petitioner, through the mechanism of the escrow agreement and note, required Bruce to sell the Cooper stock and reinvest those proceeds in securities holding promise of sufficient income to liquidate Bruce’s debt to him. Bruce could not act as a free agent as could the trustee in Pityo v. Commissioner, 70 T.C. 225 (1978), on appeal (5th Cir., Oct. 17, 1978). The substance of the transaction is as if petitioner had sold the Cooper stock, purchased the Sigma stock, then placed the latter in trust for the benefit of Elaine while retaining an income interest of $10,302.61 per year to be paid through invasion of the corpus if the income generated by the trust was insufficient to pay the prescribed amount. Cf. Hindes v. United States, 326 F.2d 150, 152 (5th Cir. 1964). Petitioner points to the existence of the trust created for the benefit of his daughter and the joint venture agreement between the trustees (Bruce and Benjamin) of that trust and the purchaser of the stock (Bruce) as proof that he has satisfied the Rushing criteria. He contends that Bruce acted independently and was primarily concerned with his own interest and that of the trust. Even if the facts are as petitioner asserts we cannot accept the mere existence of" }, { "docid": "15794529", "title": "", "text": "DENMAN, Chief Judge. Petitioners, husband and wife filing joint returns, seek a review of the Tax Court’s findings,and decision of the income tax liability of petitioners for the year 1948. Since all the pertinent transactions were by 'the husband he is hereafter called petitioner. The Tax Court found that at all pertinent times petitioner was in the business of holding and selling land. On April 1, 1948, petitioner transferred certain land to a corporation known as Hollywood Subdivision, Inc., hereafter Subdivision, in exchange for 1,750 shares of $100 par value stock. The land was the sole asset of the corporation and petitioner became the sole owner of the corporation. On April 5, 1948, petitioner sold all the stock to a newly formed corporation, Hollywood Terrace, Inc., hereafter Terrace, in exchange for a promissory note for $175,000 which was secured - by the land above mentioned. Petitioner has never had any proprietary interest in Terrace. Petitioner reported the profit from this transaction as capital gain from the sale of stock. The Commissioner determined, that the profit was ordinary income from the sale of land held for sale in the ordinary course of business and petitioner petitioned the Tax Court to redetermine the deficiency. The Tax Court found that the activation of Subdivision and the sale of its stock were steps in a single transaction and a subterfuge for the sale of land, thus agreeing with the Commissioner’s determination. Petitioner contends that the Tax Court erred in so finding and holding and that the proceeds of the sale of the stock are from his sale of a capital asset and not from the sale of land. In the alternative petitioner contends that, if the sale was of the land, the payments on the note being in installments in the tax years 1948, 1949, 1950 and 1951 the income from 1948 on the sale should be limited to the installment payments on the notes in that year amounting to but $28,364.57, this, despite the fact that he returned the whole $125,000 as income for 1948. Before the Tax Court the petitioner had the" }, { "docid": "5138341", "title": "", "text": "Bowen. In a financial statement given to the Barnett Bank in applying for a $600,000 loan, for example, Mr. Bowen listed the contract to Mrs. Bowen as a liability in the amount of $1 million, and in the \"Estimate of Annual Expenses,” he listed a $40,000-per-year annuity. Due to Mr. Bowen’s original concept of the stock purchase transaction, he continued to regard his debt to Mrs. Bowen in the nature of an annuity. Mr. Bowen listed his contract debt to Mrs. Bowen on the financial statements because he regarded it as a \"firm obligation.” On their 1975 joint Federal income tax return, petitioners reported a portion of the payments made by Mr. Bowen to his wife as interest income to Mrs. Bowen. This income was offset by an interest expense deduction by Mr. Bowen in equal amount. The remaining portion of the payments were reported by Mrs. Bowen as long-term capital gain. In the statutory notice, respondent asserted that (1) there was no bona fide purchase or sale under the terms of the second agreement dated August 13, 1973, whereby Robert Bowen agreed to buy and Elizabeth Bowen agreed to sell 232,429 shares of Industrial-America Corp. common stock; (2) such agreement had no Federal income tax consequences; and (3) Elizabeth Bowen realized no taxable capital gain as a result of such agreement. As a result, respondent determined that Mr. Bowen should recognize a long-term capital gain of $159,575.81 in 1975 from the installment sale in 1974 of 187,500 shares of Industrial-America stock to MacMillan instead of the $14,921 capital gain as reported by Mr. Bowen on petitioners’ joint 1975 return. Mr. Bowen’s capital gain from the MacMillan sale was increased since he was denied the benefit of the increment in basis that would have accrued to him had respondent recognized the interspousal transfer for tax purposes. Due to the above adjustments, petitioners’ capital gains were recomputed and their income was increased by $63,825.56. Since it was concluded by respondent that the terms of the second purchase and sales agreement dated August 13, 1973, were not bona fide, the interest income" }, { "docid": "10458062", "title": "", "text": "that same day for $250,874. Mrs. Wrenn had made numerous investments of her separate property in mutual funds prior to the instant transaction. As agreed in the sales contract, Mrs. Wrenn proceeded to purchase shares in the Fidelity Trend Fund worth $250,000 after the purchase of common stocks from her husband had been completed. Petitioners reported portions of the installment payments received by Philip Wrenn during the calendar year 1973 as long-term capital gains on Schedule D of that year’s return. Respondent subsequently rejected petitioners’ use of the installment method on the ground that the purported installment sale lacked substance and could not be recognized for tax purposes. Citing Mrs. Wrenn’s immediate resale of the shares purchased from her husband, respondent determined that no \"business purpose” had been established for the transaction, that a \"sale by one person cannot be transformed for tax purposes into a sale by another by using the latter as a conduit through which to pass title,” and that \"the install ment method may not be used to report the gain from a sale to a related taxpayer who pursuant to a prearranged plan resells the property to a third party and receives full payment in the year of sale.” The parties agree that the note and installment contract are valid and enforceable under Oregon law. Petitioners defend their installment sale election by asserting that the instant transfer was bona fide in nature and not so structured solely for purposes of tax avoidance. They argue that a bona fide section 453 installment sale does not need to be premised upon a business exigency and, in any event, that Philip Wrenn had a business purpose for effecting this transfer because he thereby increased his current return on investment from approximately 3 percent (from dividends) to 5 percent (from Mrs. Wrenn’s interest). It is contended further that Mrs. Wrenn’s unrestricted power to hold or sell the shares purchased from her husband solely at her will or whim negated any alleged prearrangement or agency relationship. Petitioners buttress this point by asserting that although as husband and wife they form" }, { "docid": "16622834", "title": "", "text": "gain in one year, often prior to the receipt of a substantial portion of the anticipated sales proceeds. Burnet v. S. & L. Bldg. Corp., 288 U.S. 406, 413-14 (1933); Pozzi v. Commissioner, 49 T.C. 119, 126 (1967). To qualify for reporting income under the installment method, however, the payments (exclusive of evidence of indebtedness of the purchaser) in the year of sale may not exceed 30 percent of the selling price. Petitioner contends that he sold 21,500 shares of his Arvin stock on December 13, 1972, to the three trusts which he created on that date and received installment obligations calling for payment of the entire sales price at the rate of a total of $4,300 per month for 240 months. Since he did not receive any part of the sales price in the year of the sale, he maintains he is entitled to report his gain under the installment method. Respondent, on the other hand, contends that petitioner constructively received the proceeds from the trusts’ sale of the Arvin stock on the open market in 1972 and that petitioner is, therefore, taxable in that year on the full amount of the realized gain attributable to the portion of the shares resold. We hold for petitioner. The precise issue to be decided must be borne in mind. Respondent does not contend that petitioner is attempting to convert what would be ordinary income into capital gain. The parties agree that the gain on the sale of the Arvin stock is subject to capital gain treatment. Nor is petitioner attempting to shift some of his income to the trusts or some other entity. Petitioner acknowledges, expressly or implicitly, that all gain on his sale of the Arvin stock to the trusts is taxable to him. The only question is whether petitioner must pay an income tax on the gain at the time of the trusts’ sales of 15,400 shares in 1972, or only in later years when he actually receives the installment payments on the trusts’ notes. The answer to that question depends on whether, as contended by respondent, the trustee" }, { "docid": "10174185", "title": "", "text": "v. Commissioner, 33 F. 2d 695. In view of the foregoing holding, there arises the question of whether petitioner is entitled to report such income on the installment basis as provided in section 44 (b), Internal Revenue Code. The short answer is that the petitioner and his wife, having exercised in their 1948 income tax return the option granted them by law to report the gain derived from the transaction in controversy upon a basis other than the installment basis, may not now change to the installment basis of reporting such gain. Pacific National Co. v. Welch, 304 U. S. 191; United States v. Kaplan, 304 U. S. 195. Moreover, the evidence does not show that the method employed by petitioner and his wife does not, if properly applied, clearly reflect income. They received in the transaction Terrace’s promissory note in the amount of $175,000. It has been stipulated that the fair market value of such note at the time it was received was $125,000. Respondent has made his determination upon the basis of such fair market value. TVe answer the question posed in the negative and hold that petitioner is not entitled to report the gain in controversy on the installment basis. The agreement of the parties with regard to the deduction by petitioner of attorney’s fees in the amount of $1,000 as an ordinary and necessary business expense will be reflected in the Rule 50 recomputation consequent hereon. Decision will he entered wider Rule- 50. SEC. 117. CAPITAL GAINS AND LOSSES. (a) Definitions. — As used in this chapter— (1) Capital assets. — The term “capital assets” means property held by the taxpayer (whether or not connected with his trade or business), but does not include stock in trade of the taxpayer or other property of a kind which would properly be Included in the inventory of the taxpayer if on hand at the close of the taxable year, or property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business, * * *. SEC. 44. INSTALLMENT BASIS. (b) Sales" }, { "docid": "10399868", "title": "", "text": "threatened to foreclose the mortgage. Upon the redemption of the bonds and defaulted interest, the Indian River Islands Corporation delivered a check for $88,591.66 payable to Hemphill, Noyes, Graham, Parsons & Co. which held $50,000 in face value of the bonds then registered in the latter firm’s name and which was pledged to secure the loan of Anne Collins referred to under the first issue. Hemphill, Noyes, Graham, Parsons & Co. at that time, on or about May 12,1950, delivered to petitioner a check for $5,591.66 endorsed to Allen Tobey, the difference of $83,000 being the amount agreed upon as the settlement of the debt due by Allen Tobey to Anne Collins. On his return for 1950, petitioner did not report any income from the Collins loan but reported a long-term capital gain of $26,715.74 from the redemption of the bonds, and a preferred stock transaction not involved herein, computed as follows: Gross sales price of bonds- $183,384.74 Gross sales price of stock- 6,324.00 Total_ $189,708.74 Less: Cost of bonds_$19,860.00 Cost of stock_ 2,200.00 Legal expenses (bonds)_ 2,073.85 - 24,123.86 Net long-term capital gain_ $166,684.89 To be taken into account (50 per cent)_ 82,792.45 Less capital loss carryover, 1946-1949, Inclusive- 56,076.71 Net long-term capital gain (taxable)_ $26,715.74 The above amount of $183,384.74 reported as gross sales price of bonds represents the face value of the bonds acquired by petitioner in the amount of $103,500 and $79,884.74 of defaulted interest. The respondent determined that $29,589.42 of the defaulted interest represented a return of capital and that the balance of $50,295.32 represented interest taxable as ordinary income. The respondent further determined a net long-term capital gain of $57,644.79 from the redemption of the bonds (and the preferred stock transaction) computed as follows: Gross sales price of bonds ($103,500 plus $29,589.42)_$133,089.42 Gross sales price of stock- 6,324.00 Total_$139,413.42 Less: Cost of bonds_$19,850.00 Cost of stock_ 2,200.00 Legal expenses (bonds)_ 2,073.85 - 24,123.85 Net long-term capital gain- $115,289.57 To be taken into account (50 per cent)_ 57,644. 79 To this long-term capital gain of $57,644.79 the respondent added the previously mentioned short-term capital gain" }, { "docid": "16622849", "title": "", "text": "in four annual installments. The installment reporting method was held inapplicable because the seller was considered to have constructively received the proceeds upon acceptance of the bid. In the instant case, at no point could petitioner have obtained possession of the sales proceeds in dispute. Also distinguishable is Wrenn v. Commissioner, 67 T.C. 576 (1976). In that case, the taxpayer-husband purportedly made a sale of securities to his wife for a 15-year installment note. The wife immediately resold the securities and reinvested the proceeds in mutual funds which were used as collateral for her installment obligation to her husband. Distinguishing Nye v. United States, 407 F. Supp. 1345 (M.D. N.C. 1975), this Court held that the transaction was not a bona fide installment sale since the taxpayer did not establish any bona fide reason for his wife’s participation in the transaction. In contrast, in the instant case, the trustee was an independent party with other property at risk, acting for the benefit of the designated beneficiaries and expecting to derive a benefit for them from the transaction through the potential increase in the value of the trusts’ corpora (the mutual fund shares) in excess of the total amounts needed to pay the notes to petitioner. The trusts were irrevocable and had a substantial independent interest in entering the transaction: the opportunity to profit from the investment of funds obtained at a relatively low interest rate and repayable over a long period of years. Upon careful consideration of all the evidence, we conclude that petitioner in 1972 made a bona fide sale of his 21,500 shares of Arvin stock to independent trusts and is entitled to report his gain from the sale under the installment method of accounting. To reflect the disposition of other issues, Decision will be entered under Rule 155. Unless otherwise indicated, all section references are to the Internal Revenue Code of 1954, as in effect during the tax year in issue. References herein to petitioner in the singular are to William D. Pityo, his wife being a party to this case solely by reason of having filed" }, { "docid": "10970099", "title": "", "text": "petitioner against a small downpayment and an agreement to pay the balance of the agreed purchase price through the remittance by petitioner of 90 percent of the amounts received by it from the “lease” of the business. The shares and/or the assets of the corporation Avere pledged by the petitioner as security for, and as the sole source of payment of, the purchase price by petitioner. Petitioner thus had no personal liability for the unpaid purchase price. Simul taneously with, or immediately after, the acquisition of the shares, the corporation was completely liquidated and all of its assets transferred to petitioner. Petitioner then transferred the current assets of the business to certain persons in exchange for an interest-bearing promissory note and entered into what was described as a lease agreement covering the physical and other assets, including tradenames, goodwill, etc. Under that agreement, petitioner was to receive as “rent,” 80 percent of the net profits of the business; sometimes provision was made for a downward reduction in this percentage at a later date. The owners of the leases were usually different from those who previously owned the shares of the corporation, such previous owners holding at most minority interests. Some 21 of such transactions are involved herein covering a wide variety of businesses. The bulk of petitioner’s income was derived from the “rents” it received. The economic effect of these devices was to divide the net profits of each business: 20 percent to the operators, 8 percent to petitioner, and 72 percent to the sellers, with the operators claiming a deduction for the rentals as business expenses, the sellers reporting their profit on the sale as capital gains, and the petitioner claiming exemptions from tax as a charitable organization on the amounts received by it. Respondent’s principal challenges in the past, in his more than 15-year litigating activities involving purchase-and-lease transactions by entities claiming exemption as charitable organizations under the Internal Revenue Code, have been directed against the private parties involved through challenges to the capital gains treatment to the seller of the gain from the “sale” and to the" } ]

[ { "docid": "6973893", "title": "", "text": "this Agreement, or claim unjust treatment or that the dismissal was unjust, relief may be sought through the following grievance procedure: ik ¡k >k :k * ¡k [A four-step grievance procedure, culminating in binding arbitration, followed.] After his discharge, Eitmann invoked the first two steps of the grievance process— presenting a written notice of his allegedly unjust dismissal to the General Manager, and meeting for discussion with a NOPSI Vice President — but abandoned the procedure when his grievance was denied at both junctures. He filed suit in state court seeking reinstatement, alleging breach not of the collective bargaining agreement but of his individual employment contract with NOPSI, whereby the latter allegedly had promised to keep him on the payroll at full compensation in the event of a disabling work-related injury. NOPSI petitioned for removal of the case to federal court pursuant to 28 U.S.C. § 1441(b) (1976), asserting that Eitmann’s claim arose under the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 141 et seq. (1976). NOPSI alleged that Eitmann’s action amounted to one for violation of a collective bargaining agreement between an employer and a labor organization representing employees in an industry affecting commerce, and thus stated a claim arising under section 301 of the LMRA, 29 U.S.C. § 185(a). The district court granted the petition for removal and, upon NOPSI’s motion for summary judgment, dismissed the action. Eitmann appeals the dismissal of his action. He argues that the district court lacked jurisdiction over the subject matter of the suit, asserting that his claim did not arise under the collective bargaining agreement, but rather was grounded upon breach of Eitmann’s individual contract of employment with NOPSI. Thus, he contends that removal was improper and urges us to remand the action to the state court whence it came. NOPSI argues that Eitmann’s state-law contract claim is preempted by the LMRA, and that therefore his action necessarily arises under federal law despite the absence of any mention of federal law in his complaint, and was properly removed. II. Federal Preemption. Section 301 of the LMRA reflects a Congressional intent to" } ]

[ { "docid": "18758943", "title": "", "text": "alleged in the instant case satisfy the requirement of “outrageousness” required to state a claim for intentional infliction of emotional distress in the context of an employer/employee relationship under California law. Appellants’ discussion of the California case law misses the mark. Although the Supreme Court in Farmer relied in part on the fact that California law requires outrageous conduct in order to ground liability on a state claim for emotional distress, see Farmer, 430 U.S. at 305, 97 S.Ct. at 1066, it did not adopt the definition of “outrageous” conduct developed by California courts. Nor has this court looked to California case law in its case-by-case development of preemption law. See, e.g., Bloom, 752 F.2d at 1315 (extreme conduct required to satisfy the minimum level of outrageousness necessary to avoid preemption). Therefore, the conduct in the instant case does not fall within the Farmer exception to federal preemption. B. NEGLIGENT EMPLOYMENT CLAIM Appellants’ claim for negligent employment fares no better under a preemption analysis. Appellants alleged that Garrett negligently employed appellees King, Lyle, and Tribby, and failed to discipline them for their improper administration of the disciplinary provisions of the collective bargaining agreement. Because resolution of this claim is also dependent upon an interpretation of disciplinary standards contained in the collective bargaining agreements, it was properly dismissed as preempted. Indeed, appellants admit that the gravamen of their complaint is a claim for intentional infliction of emotional distress: “[Ejach and every cause of action, or count, of the Complaint ... is essentially an action for intentionally [sic] infliction of emotional distress.” Appellants’ Opening Brief at 13. The district court did not err in finding that appellants’ claims for harassment, intentional infliction of emotional distress, and negligent employment were preempted by section 301 of the Labor Management Relations Act. III. EXHAUSTION OF GRIEVANCE PROCEDURES Appellants contend that the district court erred in ruling that their section 301 claims are barred by their failure to exhaust the grievance procedures available under their collective bargaining agreements. We disagree. Appellants first assert that the district court erred in finding that there were no genuine issues" }, { "docid": "18758934", "title": "", "text": "shift (including break times, meals, and restroom visits), confronting them and using abusive language toward them, bribing other employees to “set them up for termination,” reassigning work for no legitimate reason, and in the case of Trujillo, forcing him to push heavy dollies when mechanized models were available. Garrett filed a petition for removal with the district court on the basis that the state claims were artfully pled federal claims for breach of the collective bargaining agreements, and were preempted by Labor Management Relations Act (LMRA) § 301, 29 U.S.C. § 185(a) (1982). Garrett then moved for summary judgment on the grounds that (1) appellants’ state claims were preempted by federal labor law, and (2) appellants’ failure to exhaust the grievance procedures available to them under their collective bargaining agreements barred their section 301 actions. Appellants filed a cross-motion for remand. The district court denied appellants’ motion for remand and granted Garrett’s summary judgment motion. II. PREEMPTION Appellants’ complaint purports to allege the following state law claims: (1) harassment; (2) breach of implied covenant of good faith and fair dealing; (3) intentional infliction of emotional distress; and (4) negligent employment. On appeal, appellants concede that removal was proper because their claim for breach of the implied covenant of good faith and fair dealing “is in part a contract theory implicating the collective-bargaining agreement.” Appellants’ Opening Brief at 1; see Olguin v. Inspiration Consolidated Copper Co., 740 F.2d 1468, 1473 (9th Cir.1984) (court may look to facts outside of the complaint to determine whether an “artfully pleaded” state claim is in reality a section 301 claim for breach of the collective bargaining agreement). Each of appellants’ remaining claims also attacks the propriety of conduct which is regulated by the collective bargaining agreements. A. HARASSMENT AND EMOTIONAL DISTRESS CLAIMS Appellants’ harassment and emotional distress claims are based upon the following allegations: (1) Garrett issued unjustified warning letters criticizing appellants’ conduct during working hours; (2) appellants’ supervisors engaged in excessive surveillance of appellants during working hours for the purpose of harassing them; (3) appellants’ supervisors used abusive language toward them; (4) appellants’ supervisors" }, { "docid": "11224770", "title": "", "text": "CECIL, Senior Circuit Judge. This cause is on appeal from an order of the United States District Court for the Eastern District of Michigan, Southern Division, granting summary judgment to The Great Atlantic & Pacific Tea Company, defendant-appellee. The case was submitted to the court on the amended complaint of Norman Broniman, plaintiff-appellant, and the affidavit of John H. Main, operating superintendent of defendant-appellee, with attached copy of the collective bargaining agreement between the defendant-appellee and union representing the appellee’s employees. The plaintiff-appellant was an employee of the defendant-appellee and admittedly one of the employees covered by the collective bargaining agreement above mentioned. The parties will be referred to as plaintiff and defendant, respectively. Jurisdiction is based on diversity of citizenship (Section 1332(a), Title 28, U.S.C.) and Sections 159(a) and 185, Title 29, U.S.C. (Sections 9(a) and 301 L.M.R.A.) We are bound to accept as true the allegations of the amended complaint, the pertinent facts of which are as follows: The plaintiff was employed as a selector in the warehouse of the defendant from sometime in May, 1953, until on or about April 14, 1961. Under and by virtue of the collective bargaining agreement between the defendant and the union, the plaintiff acquired certain rights for continuity of employment and the right not to be laid off out of seniority or to be discharged without just cause. He was entitled to have written notice of discharge and to have such written notice preceded by two written warning notices. Plaintiff further acquired the right to have any grievances arising out of his employment or any grievances arising out of the circumstances of a discharge processed through the grievance procedure provided in the agreement. On April 14, 1961, plaintiff was laid off because of an alleged falling off of business. The defendant continued in its employ, subsequent to plaintiff’s layoff, other employees with less seniority than that of the plaintiff, in violation of the plaintiff’s rights under the agreement. The plaintiff filed a written grievance with Harry Whipple, a union steward, on May 11, 1961. Plaintiff alleges upon belief that the union" }, { "docid": "15671034", "title": "", "text": "TIMBERS, Circuit Judge: Appellant William Mitchell appeals from a judgment entered in the Eastern District of New York, Charles P. Sifton, District Judge, dismissing his wrongful discharge complaint under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1976), as barred by the 90 day limitation period of § 7511 of the New York Civil Practice Law & Rules. The sole issue on appeal is whether the district court erred in applying § 7511 to the instant action. We hold that it did. I. Appellant, a member of Local Union # 177 of the Department Store and Wholesale Drivers, Warehousemen and Helpers, was employed as a car washer by United Parcel Service, Inc. (UPS). In January 1977 appellant was discharged by UPS for dishonest acts, including “stealing time” and falsifying time cards. Appellant, who denied the charges against him, requested that his union file a grievance on his behalf contesting the discharge. As a member of Local Union # 177, the terms of appellant’s employment, including grounds for discharge and grievance procedures, were governed by the collective bargaining agreement between UPS and Local Union # 177. Pursuant to this agreement, appellant’s grievance was submitted to an arbitration panel — the Joint Atlantic Area Parcel Grievance Committee — for final resolution. Appellant was represented by his union at the hearing before this panel. On February 16, 1977 the arbitration panel denied appellant’s grievance and upheld his discharge. According to the collective bargaining agreement, this decision was final and binding. Seventeen months after the arbitral decision was rendered, appellant commenced an action under LMRA § 301 against his union and employer, alleging that UPS had breached the collective bargaining agreement by wrongfully discharging him and that Local Union # 177 had breached its statutory duty of fair representation by the manner in which it handled appellant’s grievance. The district court granted ap-pellees’ motions for summary judgment, dismissing the complaint on the ground that the action was barred by the 90 day limitation period set forth in § 7511. II. There is no federal statute of limitations applicable to §" }, { "docid": "23678085", "title": "", "text": "L.Ed.2d 839 (1985). The same is also true of the Supreme Court precedents upon which GM relies. See International Bhd. of Elec. Workers v. Hechler, 481 U.S. 851, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987) (employee's claim that union violated implied duty of care expressly premised upon collective bargaining agreements); Lueck (employee’s complaint concerning bad-faith handling of disability benefits was substantially dependent upon analysis of contract and the implied duties arising thereunder). . See supra note 16. . See Varnum v. Nu-Car Carriers, Inc., 804 F.2d 638, 640-41 (11th Cir.1986), cert. denied, 481 U.S. 1049, 107 S.Ct. 2181, 95 L.Ed.2d 838 (1987). There, the court refused to invoke the preemption doctrine in the context of an employee’s complaint that the employer should not have made a representation concerning a salary figure when, at the same time, it was drafting a change in the seniority system/pay scale that would have resulted in a lesser salary for the employee. The court concluded that the complaint did not go to \"a term of employment covered by the collective bargaining agreement.” Similarly, in Anderson v. Ford Motor Co., 803 F.2d 953, 957 (8th Cir.1986), cert. denied, 483 U.S. 1011, 107 S.Ct. 3242, 97 L.Ed.2d 747 (1987), the court rejected § 301 preemption of the state-law fraud claims of a group of laid-off employees whom Ford rehired and to whom Ford promised security against being bumped by employees on the preferential hiring list. The court held that Lueck did not mandate preemption, as the employees' rights to gain redress for fraud were independent of any contractually-established expectations of the parties. . GM argues in its reply brief that the contract's provisions concerning grievance procedures should govern the plaintiffs’ attempt to resolve the dispute and that therefore, § 301 preemption is mandated. In the context of employees’ claims that rest upon independent, state-created substantive rights, GM's argument begs the question. In Lingle, the Court recognized that although there are strong policies encouraging arbitration, \"different considerations apply where the employee's claim is based upon rights arising out of a statute designed to provide minimum substantive guarantees to" }, { "docid": "18758933", "title": "", "text": "both men for wasting company time and for excessive absenteeism. Trujillo also received notices for failing to follow instructions and for using abusive language toward supervisors. Three of the warning notices received by Truex furnished the basis for his suspension in 1984. Truex grieved these notices and the arbitrator ruled in his favor, awarding him back pay and ordering him reinstated. Appellants filed a single complaint in Los Angeles County Superior Court against Garrett and their supervisors at Garrett (Ray King (assistant terminal manager), George Lyle, Jr. (dock supervisor), and Keith Tribby (operations manager)), alleging harassment, breach of the implied covenant of good faith and fair dealing, intentional infliction of emotional distress, and negligent employment. Appellants allege that the warning notices were issued without foundation, and that their inability to grieve the letters under the terms of their collective bargaining agreements caused them to suffer emotional distress. Appellants also allege that they suffered harassment at the hands of their supervisors at Garrett, which took the form of following them for several hours during each work shift (including break times, meals, and restroom visits), confronting them and using abusive language toward them, bribing other employees to “set them up for termination,” reassigning work for no legitimate reason, and in the case of Trujillo, forcing him to push heavy dollies when mechanized models were available. Garrett filed a petition for removal with the district court on the basis that the state claims were artfully pled federal claims for breach of the collective bargaining agreements, and were preempted by Labor Management Relations Act (LMRA) § 301, 29 U.S.C. § 185(a) (1982). Garrett then moved for summary judgment on the grounds that (1) appellants’ state claims were preempted by federal labor law, and (2) appellants’ failure to exhaust the grievance procedures available to them under their collective bargaining agreements barred their section 301 actions. Appellants filed a cross-motion for remand. The district court denied appellants’ motion for remand and granted Garrett’s summary judgment motion. II. PREEMPTION Appellants’ complaint purports to allege the following state law claims: (1) harassment; (2) breach of implied covenant of" }, { "docid": "7312398", "title": "", "text": "practice charges against the union with the NLRB, or they can sue for damages in federal court, independent of the NLRB’s procedures. Appellant contends that Congress was aware of this dual system when it enacted the CSRA in 1978, and did not expressly reject it. Appellant states that at the time Congress enacted the CSRA, federal courts had held that subject matter jurisdiction over private sector duty of fair representation claims is properly predicated upon 28 U.S.C. § 1337. Smith v. Local 25, Sheet Metal Workers, 500 F.2d 741, 748 (5th Cir. 1974); Mumford v. Glover, 503 F.2d 878, 882-83 (5th Cir.1974). Both Smith and Mumford, however, are distinguishable from the present case. Mumford involved a claim that the union had breached its duty in the administration of a pension plan; there was no underlying employer action in violation of a collective bargaining agreement. Similarly, Smith did not involve an allegation of an underlying violation of a collective bargaining agreement. In both Mumford and Smith, the court found jurisdiction under 28 U.S.C. § 1337 because the NLRA and the Railway Labor Act, respectively, were laws regulating commerce. Because no violation of a collective bargaining agreement was involved, there could be no § 301 jurisdiction. The court in In re Carter, 618 F.2d 1093, 1104 (5th Cir.1980), summarizes this point succinctly: When the allegations assert a breach of the duty of fair representation without a corresponding breach of the collective contract, federal question jurisdiction cannot be grounded on Section 301. Regardless of Appellant’s failure to name the employer as a party to this action, there is an underlying allegation that the breach of the duty of fair representation involved a breach of the collective bargaining agreement by the employer. Appellant’s complaint stated: “Local 1759 has entered into a collective bargaining agreement with plaintiff’s employer as a result of its exclusive representation of the bargaining unit” and “Local 1759 owes plaintiff a statutory duty to fairly represent plaintiff in all aspects of its administration of the collective bargaining agreement, pursuant to § 7114(a)(1).” If Appellant’s action had been in the private sector," }, { "docid": "17275807", "title": "", "text": "collective bargaining agreement and the federal courts. On appeal, Redmond denies that his complaint confers federal subject matter jurisdiction under § 301 LMRA. An examination of the complaint reveals that appellant’s claims of breach of contract, fraud, outrage and bad faith all derive from his layoff by Harbison and the company’s subsequent refusal to reinstate him to a bargaining unit job in accordance with the UMW collective bargaining agreement. By its terms, the complaint admits that Redmond’s rights arise under the collective bargaining agreement. As the district court correctly noted, Redmond cannot claim both a separate, individual employment agreement and an employment agreement tied to the collective bargaining agreement. This case clearly presents a suit for violation of a contract between an employer and a labor union representing employees and therefore falls within § 301 LMRA. The district court’s characterization of Redmond’s suit as one arising under § 301 is required by federal preemption doctrines. See Fristoe v. Reynolds Metal Co., 615 F.2d 1209, 1212 (9th Cir.1980). The Supreme Court established in Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 456, 77 S.Ct. 912, 918, 1 L.Ed.2d 972 (1957), that federal substantive law applies in suits under § 301 and in Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Lucas Flour Co., 369 U.S. 95, 102-04, 82 S.Ct. 571, 576-77, 7 L.Ed.2d 593 (1962), that when principles of federal law are involved, as they are in § 301 suits, they prevail over state law. An employee claiming a breach by his employer of the collective bargaining agreement is bound by the terms of that agreement as to the method for enforcing his contractual rights. Vaca v. Sipes, 386 U.S. 171, 184, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967). For this reason, the employee must attempt to use the grievance and arbitration procedure established by the employer and union in the collective bargaining agreement prior to bringing suit in federal court. Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965). Despite Redmond’s claim on appeal that he" }, { "docid": "18758936", "title": "", "text": "attempted to bribe other employees to “set up” appellants for termination; and (5) appellants’ work duties were reassigned for no legitimate purpose. Appellants’ claims that Garrett issued them unjustified warning letters, conducted excessive supervision of them, and altered their work assignments are in essence claims that administration of discipline was improper under the standards set by the collective bargaining agreements. See Choate v. Louisville & Nashville R.R., 715 F.2d 369, 371-72 (7th Cir.1983) (employee’s characterization in emotional distress claim of employer’s threats of dismissal, punishment, and attempts to discipline employee as “improper” implies existence of contractual standards in collective bargaining agreement). Because an evaluation of these claims is substantially dependent upon an analysis of the terms of the collective bargaining agreements, the claims are preempted by federal labor law. Allis-Chalmers Corp. v. Lueck, 471 U.S. —, 105 S.Ct. 1904, 1916, 85 L.Ed.2d 206 (1985); see Beers v. Southern Pacific Transportation Co., 703 F.2d 425, 429 (9th Cir.1983) (preemption proper where employee’s complaint concerned working conditions and disciplinary procedures which are rights covered by or substantially related to the collective bargaining agreement). Moreover, because the collective bargaining agreements expressly specify a just cause standard for termination, appellants’ claim that Garrett is attempting to terminate them is of necessity a claim that Garrett is engineering a breach of the collective bargaining agreements by preparing to terminate appellants without just cause. Because disputes concerning the employment relationship are governed by the collective bargaining agreement, they are preempted by federal labor law. See Olguin v. Inspiration Consolidated Copper Co., 740 F.2d at 1476 (emotional distress . claim concerning employment or work conditions held preempted by federal labor law); Magnuson v. Burlington Northern, Inc., 576 F.2d 1367, 1369 (9th Cir.) (emotional distress claim preempted because it was based on a matrix of facts which were inextricably intertwined with the grievance machinery of the collective bargaining agreement), cert. denied, 439 U.S. 930, 99 S.Ct. 318, 58 L.Ed.2d 323 (1978). Therefore, the district court properly dismissed appellants’ harassment and mental distress claims as preempted by federal labor law. See Allis-Chalmers v. Lueck, 105 S.Ct. at 1916 (where" }, { "docid": "18584401", "title": "", "text": "founded directly on rights created by collective bargaining agreements, and also claims which are substantially dependent on analysis of a collective bargaining agreement. Caterpillar, Inc. v. Williams, 107 S.Ct. at 2431. Tort claims such as those alleged in this case may also be governed by the terms of the collective bargaining agreement, and thus preempted. Allis-Chalmers, 471 U.S. at 216-18, 105 S.Ct. at 1914. Therefore, if either wrongful discharge claim is preempted because it is based on rights created by the collective bargaining agreement, then federal jurisdiction exists. In their second cause of action, appellants specifically alleged that Kaiser breached a covenant of good faith and fair dealing, which appellants contend was an implied provision within the collective bargaining agreement, relying on Cleary v. American Airlines, Inc., 111 Cal.App.3d 443, 168 Cal.Rptr. 722 (1980). The second cause of action clearly is based on an alleged breach of contract between Kaiser and appellants’ labor organization. Allis-Chalmers, 471 U.S. at 216, 105 S.Ct. at 1914. By placing in issue the terms of the collective bargaining agreement, it is clear that the rights and liabilities of the parties are a product of the collective bargaining agreement itself, and that this claim is thus preempted by section 301. Therefore, federal removal jurisdiction existed, based on the second cause of action. Having properly assumed jurisdiction, the,district court correctly dismissed the second cause of action as time-barred. IV. Appellants’ first cause of action is for wrongful discharge in violation of the public policy of California as expressed in its Labor Code. California restricts an employer’s right to discharge its employees at will when such discharge is prohibited by statute or violates public policy. Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 172, 164 Cal.Rptr. 839, 841-42, 610 P.2d 1330 (1980). Appellants’ claim is based on Cal/OSHA provisions requiring employers to provide a safe place of employment, and prohibiting the discharge of employees who complain of unsafe working conditions to their employer. The district court held that this was an artfully pleaded claim that was preempted by section 301 and dismissed the action as time-barred. Preemption under" }, { "docid": "18758935", "title": "", "text": "good faith and fair dealing; (3) intentional infliction of emotional distress; and (4) negligent employment. On appeal, appellants concede that removal was proper because their claim for breach of the implied covenant of good faith and fair dealing “is in part a contract theory implicating the collective-bargaining agreement.” Appellants’ Opening Brief at 1; see Olguin v. Inspiration Consolidated Copper Co., 740 F.2d 1468, 1473 (9th Cir.1984) (court may look to facts outside of the complaint to determine whether an “artfully pleaded” state claim is in reality a section 301 claim for breach of the collective bargaining agreement). Each of appellants’ remaining claims also attacks the propriety of conduct which is regulated by the collective bargaining agreements. A. HARASSMENT AND EMOTIONAL DISTRESS CLAIMS Appellants’ harassment and emotional distress claims are based upon the following allegations: (1) Garrett issued unjustified warning letters criticizing appellants’ conduct during working hours; (2) appellants’ supervisors engaged in excessive surveillance of appellants during working hours for the purpose of harassing them; (3) appellants’ supervisors used abusive language toward them; (4) appellants’ supervisors attempted to bribe other employees to “set up” appellants for termination; and (5) appellants’ work duties were reassigned for no legitimate purpose. Appellants’ claims that Garrett issued them unjustified warning letters, conducted excessive supervision of them, and altered their work assignments are in essence claims that administration of discipline was improper under the standards set by the collective bargaining agreements. See Choate v. Louisville & Nashville R.R., 715 F.2d 369, 371-72 (7th Cir.1983) (employee’s characterization in emotional distress claim of employer’s threats of dismissal, punishment, and attempts to discipline employee as “improper” implies existence of contractual standards in collective bargaining agreement). Because an evaluation of these claims is substantially dependent upon an analysis of the terms of the collective bargaining agreements, the claims are preempted by federal labor law. Allis-Chalmers Corp. v. Lueck, 471 U.S. —, 105 S.Ct. 1904, 1916, 85 L.Ed.2d 206 (1985); see Beers v. Southern Pacific Transportation Co., 703 F.2d 425, 429 (9th Cir.1983) (preemption proper where employee’s complaint concerned working conditions and disciplinary procedures which are rights covered by or substantially" }, { "docid": "8934721", "title": "", "text": "the “bridge agreement” conferred such rights on the plaintiffs, that the subsequent collective-bargaining agreement abrogated those rights, and that the plaintiffs agreed to the 1979 collective-bargaining agreement because the president of Local 801 misrepresented those rights as the court construed them. As the court below correctly concluded, such a judicial undertaking would necessarily involve the federal courts in adjudicating a claim “substantially dependent on analysis of collective-bargaining agreements.” Caterpillar, 482 U.S. at 394, 107 S.Ct. at 2431; Electrical Workers, 481 U.S. at 859 n. 3, 107 S.Ct. at 2166-67 n. 3. We might go even farther and say that the rights at issue are “created by collective-bargaining agreements,” Caterpillar, ibid., thus effecting a complete preemption of plaintiffs’ fraud claims. Plaintiffs also argue that the court did not consider all of their allegations of fraud in concluding that their claim was fully preempted. Their brief states: As set forth in paragraphs 39 through 42 [of the complaint], the Plaintiffs-Appellants further alleged, after completion of all collective bargaining agreements, and after all the actions surrounding the collective bargaining agreements, that the President of Local 801 from February of 1980 through January of 1981, made various extensive fraudulent misrepresentations regarding the continued recognition of the seniority rights of the laid off Plaintiffs-Appellants. Specifically he indicated that these employees had nothing to worry about, and they accordingly would participate fully in the Chevrolet jobs.... These fraudulent representations made by the President obviously took place long after the collective bargaining agreements, and they were not representations being made with regards to the collective bargaining agreements, but were representations that the Plaintiffs-Appellants would be participating in the Chevrolet jobs like their counterparts. * * * * * * In the case at bar, the fraudulent representation claims are based upon the representations made by the President; the claim does not require extensive interpretation of the collective bargaining agreement. Instead, the Plaintiffs-Appellants, in raising their separate state claims, complain with regards to the fraudulent acts on the part of the President in making representations that seniority, despite the terms and conditions of the collective bargaining agreement, was" }, { "docid": "3535622", "title": "", "text": "if they decertified their union and that, after the employees did so, the employer reneged on those promises. We held that none of these claims were preempted by section 301. Of particular relevance to the present case is our holding on the fraud claim. Emphasizing the distinction made in Lingle between factual questions about motive, on the one hand, and the interpretation of a collective bargaining agreement, on the other, we concluded that “[a]n examination of the employer’s behavior, motivation, and statements does not substantially depend upon the terms of the collective bargaining agreement.” Id. at 232. With these principles in mind, we turn to the case before us. To reiterate, plaintiffs contend that GM committed common-law fraud by intentionally lying to the employees about the status of the Trenton plant in order to induce them to leave voluntarily, thereby reducing the payroll. The New Jersey Supreme Court has stated that “[a] misrepresentation amounting to actual legal fraud consists of a material representation of a presently existing or past fact, made with knowledge of its falsity and with the intention that the other party rely thereon, resulting in reliance by that party to his detriment.” Jewish Ctr. of Sussex County v. Whale, 86 N.J. 619, 432 A2d 521, 524 (1981). GM urges that a decision whether these elements have been shown would require the kind of interpretation of the collective bargaining agreement prohibited by the section 301 preemption doctrine. We are unpersuaded. GM first focuses on the intent requirement, contending that resolution of the issue of GM’s intent “requires interpretation of the collectively-bargained Special Accelerated Attrition Agreement.” Appellant’s Br. at 23. GM’s intent in entering into the SAAA, however, is not the question put in issue by plaintiffs’ complaint. Rather, plaintiffs focus on GM’s intent in representing that closure of the plant was imminent. The amended complaint plainly alleges that “GM intentionally misrepresented to Plaintiffs the status of the plant closing.” App. at 187. “GM made the misrepresentations, including the omission of information, for the purpose of inducing Plaintiffs to quit their jobs and accept the SAAA.” App. at 188." }, { "docid": "23678084", "title": "", "text": "See, e.g., Darden v. United States Steel Corp., 830 F.2d 1116 (11th Cir.1987) (per curiam) (laid-off employees with rehire rights were “employees” nonetheless and could not avoid obligation under collective bargaining agreement to bring their grievance to arbitration); Bale v. General Tel. Co., 795 F.2d 775 (9th Cir.1986) (contract definition of \"temporary employee\" governed dispute); Gibson v. AT & T Technologies, Inc., 782 F.2d 686 (7th Cir.) (employees sought layoff allowance provided for in agreement), cert. denied, 477 U.S. 905, 106 S.Ct. 3275, 91 L.Ed.2d 565 (1986); Mason v. Continental Group, Inc., 763 F.2d 1219 (11th Cir.1985) (employer’s closure of plant and termination of employees was governed by arbitration clause in agreement, especially where employees had two months between announcement and closing to bring grievances), cert. denied, 474 U.S. 1087, 106 S.Ct. 863, 88 L.Ed.2d 902 (1986); Moore v. General Motors Corp., 739 F.2d 311 (8th Cir.1984) (contract provision concerning transfer was source of, and governed, plaintiff's claim that employer required transfer without exercising due care), cert. denied, 471 U.S. 1099, 105 S.Ct. 2320, 85 L.Ed.2d 839 (1985). The same is also true of the Supreme Court precedents upon which GM relies. See International Bhd. of Elec. Workers v. Hechler, 481 U.S. 851, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987) (employee's claim that union violated implied duty of care expressly premised upon collective bargaining agreements); Lueck (employee’s complaint concerning bad-faith handling of disability benefits was substantially dependent upon analysis of contract and the implied duties arising thereunder). . See supra note 16. . See Varnum v. Nu-Car Carriers, Inc., 804 F.2d 638, 640-41 (11th Cir.1986), cert. denied, 481 U.S. 1049, 107 S.Ct. 2181, 95 L.Ed.2d 838 (1987). There, the court refused to invoke the preemption doctrine in the context of an employee’s complaint that the employer should not have made a representation concerning a salary figure when, at the same time, it was drafting a change in the seniority system/pay scale that would have resulted in a lesser salary for the employee. The court concluded that the complaint did not go to \"a term of employment covered by the collective" }, { "docid": "18758948", "title": "", "text": "decision in Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367 (9th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 2319, 85 L.Ed.2d 839 (1985) implies that it is unnecessary to seek a remedy through arbitration where the claim is outside the collective bargaining agreement. Appellants’ argument begs the question. In Garibaldi, we held that an adverse arbitration decision did not operate to bar Garibaldi’s wrongful termination claim. 726 F.2d at 1376. We had already concluded, however, that Garibaldi’s wrongful termination claim fell outside the scope of the collective bargaining agreement and was not preempted because it was based on a violation of state public policy. 726 F.2d at 1374-75, 1376. Appellants’ reliance upon Peabody Galion v. Dollar, 666 F.2d 1309 (10th Cir.1981) is similarly misplaced. Dollar’s state claim for wrongful termination was based upon violation of a state law forbidding retaliatory firing of an employee who filed a workers’ compensation claim. Id. at 1312. The court analyzed the relationship between Dollar’s statutory claim and the NLRA, and concluded that the discharge of workers because they filed workers’ compensation claims is not protected or prohibited by the NLRA and is unrelated to the collective bargaining agreement. Id. at 1316. The court concluded that the claim was not preempted, and that the binding arbitration provision in the collective bargaining agreement did not bar the claim because the dispute was unrelated to the collective bargaining agreement and was not subject to arbitration. Id. at 1319-20. In the instant case, by contrast, we have concluded that appellants’ state tort claims are preempted by federal labor law. Therefore, appellants’ failure to exhaust their remedies under the collective bargaining agreements precludes them from pursuing their section 301 claims in federal court. IV. CONCLUSION The district court correctly concluded that appellants’ state tort claims were preempted by federal labor law or were subsumed within their section 301 claims. Because appellants failed to exhaust the grievance procedures available to them under their collective bargaining agreements, the district court did not err in dismissing their section 301 claims. The judgment is AFFIRMED. . Appellants do not contend that" }, { "docid": "18758944", "title": "", "text": "and failed to discipline them for their improper administration of the disciplinary provisions of the collective bargaining agreement. Because resolution of this claim is also dependent upon an interpretation of disciplinary standards contained in the collective bargaining agreements, it was properly dismissed as preempted. Indeed, appellants admit that the gravamen of their complaint is a claim for intentional infliction of emotional distress: “[Ejach and every cause of action, or count, of the Complaint ... is essentially an action for intentionally [sic] infliction of emotional distress.” Appellants’ Opening Brief at 13. The district court did not err in finding that appellants’ claims for harassment, intentional infliction of emotional distress, and negligent employment were preempted by section 301 of the Labor Management Relations Act. III. EXHAUSTION OF GRIEVANCE PROCEDURES Appellants contend that the district court erred in ruling that their section 301 claims are barred by their failure to exhaust the grievance procedures available under their collective bargaining agreements. We disagree. Appellants first assert that the district court erred in finding that there were no genuine issues of material fact regarding their failure to exhaust the grievance procedure available under their collective bargaining agreements. Appellants do not point to any disputed issues of fact other than those which they listed in their “statement of genuine issues of material fact,” filed in support of their opposition to Garrett’s motion for summary judgment: that the warning letters were unwarranted, and that surveillance actually occurred. For the purposes of its motion for summary judgment, however, Garrett did not dispute either of these facts. Instead, Garrett argues that the questions whether the warning letters were warranted and whether the surveillance occurred should be resolved by an arbitrator rather than by this court. As discussed supra, appellants have artfully pled violations of their collective bargaining agreements. A bargaining unit employee may not bring an action for breach of a collective bargaining agreement unless he has exhausted the contractual grievance procedures. Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-53, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965); Olguin v. Inspiration Consolidated Copper Co., 740 F.2d at 1476;" }, { "docid": "17275806", "title": "", "text": "and Harbison filed a petition for removal citing federal district court jurisdiction on the basis of § 301(a) of the Labor Management Relations Act, 1947, 29 U.S.C.A. § 185(a) (West 1978), and diversity. The case was then removed to the Northern District of Alabama where summary judgment was entered against Redmond. The district court found that since Redmond invoked the collective bargaining agreement in his suit, he was bound by it and his failure to exhaust the applicable grievance barred him from bringing suit. The district court also noted that Redmond had failed to prove that his case fell within either of the exceptions to the general rule requiring exhaustion of remedies. Redmond raises two alternative claims on appeal, that he was not required to exhaust his remedies and that if he was so required he raised genuine issues of material fact as to whether his case falls into the two exceptions to the rule. Redmond’s first claim is based upon a basic misapprehension about remedies available to him through the grievance procedure of the collective bargaining agreement and the federal courts. On appeal, Redmond denies that his complaint confers federal subject matter jurisdiction under § 301 LMRA. An examination of the complaint reveals that appellant’s claims of breach of contract, fraud, outrage and bad faith all derive from his layoff by Harbison and the company’s subsequent refusal to reinstate him to a bargaining unit job in accordance with the UMW collective bargaining agreement. By its terms, the complaint admits that Redmond’s rights arise under the collective bargaining agreement. As the district court correctly noted, Redmond cannot claim both a separate, individual employment agreement and an employment agreement tied to the collective bargaining agreement. This case clearly presents a suit for violation of a contract between an employer and a labor union representing employees and therefore falls within § 301 LMRA. The district court’s characterization of Redmond’s suit as one arising under § 301 is required by federal preemption doctrines. See Fristoe v. Reynolds Metal Co., 615 F.2d 1209, 1212 (9th Cir.1980). The Supreme Court established in Textile Workers Union" }, { "docid": "16927823", "title": "", "text": "[sic] of service.” Fant also indicates that he sought the services of the IBEW in an effort to regain his employment, but it refused to represent him saying “that he was no longer considered a member of the union.” Given his specific reference to a work-related injury, the district court found that Fant alleged a § 75B claim under the state workers’ compensation law. We accept this reading. In that claim, Fant asserts that his termination “was in violation of the Collective Bargaining Agreement entered into by defendants, NEPSCO and IBEW,” a contention that is incorporated into each count of the complaint. Under the state statute, the protections of § 75B are subordinate to the terms of any collective bargaining agreement (CBA) between the employee’s union and employer. “In the event that any right set forth in this section is inconsistent with an applicable collective bargaining agreement, such agreement shall prevail.” Mass. Gen. Laws ch. 152, § 75B(3). Having found that the amended complaint alleged a claim under Chapter 152, § 75B, the district court also concluded that the state “law upon which Fant relies expressly states that the rights it creates are not independent of collective bargaining agreements.” Furthermore, “[d]eter-mining whether [the CBA] is consistent with the workers’ compensation law ... would require interpreting the collective bargaining agreement,” an analysis that the court could not pursue “because of the preemptive effect of the federal law governing relations between labor and management,” a reference to the LMRA. III. Preemption As noted, § 301 of the LMRA allows a “[s]uit for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce.” 29 U.S.C. § 185(a)(1982). State law claims implicating rights and duties under a CBA may be preempted by § 301. “[T]he question which controls preemption disputes under section 301 is, simply, whether a state law action is based, in its essence, on a claim of rights or duties under a collective bargaining agreement.” The Developing Labor Law, 1699 (Patrick Hardin et al. eds., 3d ed.1992) (1971). Employers have an obligation to comply with" }, { "docid": "3535638", "title": "", "text": "the plant to keep it going. The Serrano court stated: “[T]he gravamen of the three fraud charges is that J & L did not bargain in good faith in obtaining concessions from the Union in the [collective bargaining] agreement.” Unlike Serrano, this case does not concern the employer’s extraction of concessions from the union in bargaining, but rather concerns GM’s alleged fraudulent announcement that the plant would close, an announcement that was independent of the bargaining process. This distinction holds true for the other cases cited by GM where the employees’ claims were preempted. See Parker v. Connors Steel Co., 855 F.2d 1510, 1515-18 (11th Cir.1988)(fraud claim relating to concessions obtained by employer during bargaining); Kolentus v. Avco Corp., 798 F.2d 949, 960-62 (7th Cir.1986)(claim of fraudulent nondisclosure of plan to close plant during contract negotiations); see also Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 660 (7th Cir.1992) (finding preemption of claim that bargaining-unit work was improperly transferred without a union vote because claim was equivalent to charge that employer unilaterally changed terms and conditions of employment in violation of section 8(a)(5)). In contrast to those cases, here there is no necessary nexus between the challenged representations and collective bargaining. Courts considering eases that more closely parallel the situation here have found no preemption. In Wells v. General Motors Corp., 881 F.2d 166 (5th Cir.1989), employees alleged that the employer offered false inducements in order to persuade the employees to accept a voluntary termination plan which, like the one in this case, was the product of prior collective bargaining. The employer was alleged to have misrepresented the employees’ eligibility for rehire if they accepted the plan. The court found the fraud claim was not preempted under Gar-mon principles or section 301. The court reasoned that the claim could not be construed as one of bargaining in bad faith, and emphasized that eligibility for future employment is not a mandatory bargaining subject. Turning then to whether the complaint could be recast as an allegation of direct dealing with the employees, the court stated, in a passage equally applicable here:" }, { "docid": "18758931", "title": "", "text": "ALARCON, Circuit Judge: Appellants Michael Truex and Fred Trujillo (hereinafter appellants) appeal from the district court’s summary judgment in favor of appellees Garrett Freightlines, Inc., Ray King, George Lyles, Jr., and Keith Tribby (hereinafter referred to collectively as Garrett). Appellants contend that the district court erred in ruling that (1) their state tort claims for intentional infliction of emotional distress were preempted by federal labor law, and (2) their failure to exhaust the grievance procedures available under their collective bargaining agreements barred their section 301 claims for breach of the collective bargaining agreements. In reviewing a grant of summary judgment, this court must determine whether, after viewing the evidence in the light most favorable to the opposing party, any genuine issue of material fact remains for trial and whether the substantive law was correctly applied. Fed.R.Civ.P. 56(c); Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 981 (9th Cir.1985). The district court’s summary judgment award is reviewable de novo. Friends of Endangered Species, 760 F.2d at 981. I. FACTS AND PROCEDURAL BACKGROUND Appellant Truex is a member of Teamsters Union Local No. 495. Appellant Trujillo is a member of Teamsters Union Local No. 63. Although Truex and Trujillo are covered by different collective bargaining agreements between their respective unions and their employer, Garrett, the provisions of the collective bargaining agreements relevant to this appeal are identical. Article 45 of the collective bargaining agreements sets forth a grievance procedure which provides a method for resolution of “any controversy” between the union and the employer. Article 46 provides that the employer must have just cause to discharge or suspend any employee and must have given the employee at least one warning notice describing the employer’s complaint. Pursuant to article 46, warning notices are automatically deemed protested by the employee, but grievances based on them will not be heard unless the notices are used as a basis for suspension or discharge within their effective life (nine months). Truex received seven warning notices between January 1983 and February 1984. Trujillo received eight warning notices between August 1983 and February 1984. The notices chastised" } ]

[ { "docid": "22669860", "title": "", "text": "be punished criminally for willful deprivations of constitutional rights on the strength of 18 U. S. C. § 242, the criminal analog of § 1983. O’Shea v. Littleton, 414 U. S. 488, 503 (1974); cf. Gravel v. United States, 408 U. S. 606, 627 (1972). The prosecutor would fare no better for his willful acts. Moreover, a prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers. These checks undermine the argument that the imposition of civil liability is the only way to insure that prosecutors are mindful of the constitutional rights of persons accused of crime. IV It remains to delineate the boundaries of our holding. As noted, supra, at 416, the Court of Appeals emphasized that each of respondent’s challenged activities was an “integral part of the judicial process.” 600 F. 2d, at 1302. The purpose of the Court of Appeals’ focus upon the functional nature of the activities rather than respondent’s status was to distinguish and leave standing those cases, in its Circuit and in some others, which hold that a prosecutor engaged in certain investigative activities enjoys, not the absolute immunity associated with the judicial process, but only a good-faith defense comparable to the policeman’s. See Pierson v. Ray, 386 U. S., at 557. We agree with the Court of Appeals that respondent’s activities were intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force. We have no occasion to consider whether like or similar reasons require immunity for those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate. We hold only that in initiating a prosecution and in presenting the State’s case, the prosecutor is immune from a civil suit for damages under § 1983. The judgment of the Court of Appeals for the Ninth Circuit accordingly is Affirmed. Mr. Justice Stevens took no part in the consideration or decision of" } ]

[ { "docid": "9507597", "title": "", "text": "legislator. The Supreme Court has not yet passed upon application of the Clause to a state legislator. We find it significant that the constitutional phraseology is limited to members of Congress, and we conclude that the immunity is granted only to them and to certain of their aides. Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975); Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973); Gravel v. United States, supra; Kilbourn v. Thompson, supra. It does not apply to members of a state legislature. In Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), the Court held that a state legislator did enjoy an immunity from damage liability in a suit brought under the Civil Rights Act, now codified at 42 U.S.C. §§ 1983 and 1985. Although the opinion discussed the Speech or Debate Clause in both Federal and state Constitutions at some length, the Court’s holding was narrow — that state legislators are immune from damage awards in civil suits brought under the Civil Rights Act. The case, therefore, does no more than recognize a kind of official immunity from civil damage suits similar to that granted to judges, Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213,18 L.Ed.2d 288 (1967), and prosecutors, Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), and more extensive than that available to executive officers, Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). As O’Shea v. Littleton, 414 U.S. 488, 503, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), makes clear, however, official immunity applies only in civil cases. A judicially fashioned doctrine of official immunity does not reach “so far as to immunize criminal conduct proscribed by an Act of Congress,” Gravel v. United States, 408 U.S. at 627, 92 S.Ct. at 2628. Tenney v. Brandhove did not apply the Speech or Debate Clause of the United States Constitution to a state legislator as has sometimes been asserted. The Clause is viable in a governmental setting where separation" }, { "docid": "3296437", "title": "", "text": "... or imprisoned Whatever may be the case with respect to civil liability generally, see Pierson v. Ray [386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967)], or civil liability for willful corruption, see Alzua v. Johnson, 231 U.S. 106, 110-111 [34 S.Ct. 27, 28-29, 58 L.Ed. 142] (1913); Bradley v. Fisher [80 U.S.] 13 Wall. 335, 347, 350, 354 [20 L.Ed. 646] (1872), we have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights. Cf. Ex parte Virginia [10 Otto 339], 100 U.S. 339, 25 L.Ed. 676 (1880). On the contrary, the judicially fashioned doctrine of official immunity does not reach “so far as to immunize criminal conduct proscribed by an Act of Congress . . . .” Gravel v. United States, 408 U.S. 606, 627, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). 414 U.S. at 503, 94 S.Ct. at 679. We need not reach that question here. We affirm the dismissal on the grounds that first, plaintiffs have failed to allege irreparable harm and lack of an adequate remedy at law, indispensable prerequisites to the equitable relief requested, and second, that the doctrine of federal non-intervention into state court proceedings is applicable here. The Supreme Court has often reaffirmed the basic principle that equity will not act to restrain state criminal proceedings “when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.” Younger v. Harris, 401 U.S. 37, 43 — 44, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971). Neither the requisite irreparable harm nor the lack of an adequate remedy at law exists here. Plaintiffs do not challenge their present incarceration or the legality of their sentences, they challenge only possible future recurrences of the alleged illegal acts. The reason for this is clear. If plaintiffs sought relief from the fact or duration of present custody on the basis of an illegal conviction, they would have to begin by filing under the state post-conviction act, thereby exhausting their state" }, { "docid": "3296436", "title": "", "text": "the complaint on the ground that each of the defendants enjoyed judicial or quasi-judicial immunity which barred declaratory and injunctive relief. This circuit has never decided whether those enjoying judicial immunity from damage suits are similarly immune from suits seeking equitable and injunctive relief. In O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) the Supreme Court observed: Judges who would willfully discriminate on the ground of race or otherwise would willfully deprive the citizen of his constitutional rights, as this complaint alleges, must take account of 18 U.S.C. § 242. . . . That section provides: “Whoever, under color of any law, statute, ordinance, regulation, or custom willfully subjects any inhabitant of any State ... to the deprivation of any rights, privileges, or immunities, secured or protected by the Constitution or laws of the United States, or to different punishments, pains or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined ... or imprisoned Whatever may be the case with respect to civil liability generally, see Pierson v. Ray [386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967)], or civil liability for willful corruption, see Alzua v. Johnson, 231 U.S. 106, 110-111 [34 S.Ct. 27, 28-29, 58 L.Ed. 142] (1913); Bradley v. Fisher [80 U.S.] 13 Wall. 335, 347, 350, 354 [20 L.Ed. 646] (1872), we have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights. Cf. Ex parte Virginia [10 Otto 339], 100 U.S. 339, 25 L.Ed. 676 (1880). On the contrary, the judicially fashioned doctrine of official immunity does not reach “so far as to immunize criminal conduct proscribed by an Act of Congress . . . .” Gravel v. United States, 408 U.S. 606, 627, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). 414 U.S. at 503, 94 S.Ct. at 679. We need not reach that question here. We affirm the dismissal on the grounds that" }, { "docid": "856115", "title": "", "text": "Supreme Court stated: Whatever may be the case with respect to civil liability generally, see Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), or civil liability for willful corruption, see Alzua v. Johnson, 231 U.S. 106, 110-111, 34 S.Ct. 27, 58 L.Ed. 142 (1913); Bradley v. Fisher, 13 Wall. 335, 347, 350, 354, 20 L.Ed. 646 (1872), we have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights. Cf. Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1880). On the contrary, the judicially fashioned doctrine of official immunity does not reach “so far as to immunize criminal conduct proscribed by an Act of Congress . . . .” Gravel v. United States, 408 U.S. 606, 627, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). Because official immunity affords no protection from criminal liability for acts committed in an official capacity, it follows logically that in a criminal prosecution of a government official, official immunity provides no evidentiary privilege against disclosure of his official acts or the motivation for them comparable to that accorded to Congressmen by their speech or debate privilege. United States v. DiCarlo, supra at 806-07; United States v. Craig, supra. Ill I am of the opinion that neither reason nor authority supports the transformation of the doctrine of official immunity into a federal common law speech or debate privilege. Nothing in our history, nor in any of the authorities cited by the defendant or relied upon by the dictum of the Third Circuit or the panel majority in United States v. Craig, supra, involved abuses of the type which would warrant the creation of such a privilege, namely, interference by the federal government with the independence of state legislators. I believe, however, that the nature of the American judicial and political systems makes remote such a possibility of interference. Before any prosecution against a state legislator can succeed the federal government must convince both a grand jury and a petit jury of the legislator’s corruption." }, { "docid": "9507598", "title": "", "text": "civil suits brought under the Civil Rights Act. The case, therefore, does no more than recognize a kind of official immunity from civil damage suits similar to that granted to judges, Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213,18 L.Ed.2d 288 (1967), and prosecutors, Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), and more extensive than that available to executive officers, Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). As O’Shea v. Littleton, 414 U.S. 488, 503, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), makes clear, however, official immunity applies only in civil cases. A judicially fashioned doctrine of official immunity does not reach “so far as to immunize criminal conduct proscribed by an Act of Congress,” Gravel v. United States, 408 U.S. at 627, 92 S.Ct. at 2628. Tenney v. Brandhove did not apply the Speech or Debate Clause of the United States Constitution to a state legislator as has sometimes been asserted. The Clause is viable in a governmental setting where separation of powers is a significant factor. That consideration does not apply when a state legislator is being prosecuted under a federal criminal statute. Federal power and its exercise within the constitutional grant takes precedence over state activity, including that of its legisla- ture. Thus, in Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966), where controversial speech was within First Amendment protection, the Supreme Court held that a state legislature could not refuse to seat one of its members because of objections to his views. In an analogous situation involving a member of the United States House of Representatives, the Supreme Court found it unnecessary to determine whether the Speech or Debate Clause would foreclose an action against members of Congress themselves. Powell v. McCor-mack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). No such reservation was made in the Bond case, although certain members of the legislature were parties defendant. In Eastland v. United States Servicemen’s Fund, supra, the Court refused an injunction against a Senate subcommittee accused" }, { "docid": "2665420", "title": "", "text": "issue whether the complaint states a cause of action for damages under the fifth, sixth and eighth amendments, and the district court, dismissing the complaint on grounds of absolute immunity, never decided the matter. Accordingly, we take no position here on whether a damage recovery is available in an action brought directly under the fifth, sixth and eighth amendments or whether the particular facts alleged in the complaint state a cause of action under the constitutional amendments. See Cardinale v. Washington Technical Institute, 163 U.S.App.D.C. 123, 500 F.2d 791, 796 n. 5 (1974). . The purpose of the privilege rule has been clearly stated by the Supreme Court: It has been thought important that officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties — suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government. Barr v. Matteo, supra, 360 U.S. at 571, 79 S.Ct. at 1339. . Scheuer left intact the absolute immunity doctrine which protects legislators with respect to any speech, debate, vote, report, or action done in session, Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972); Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951); and protects judges for acts done within the judicial role. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). . If the officer’s actions were not in the course of official conduct, he is not entitled to any qualified immunity or good faith defense. See Hutchison v. Lake Oswego School Dist. No. 7, 374 F.Supp. 1056 (D.Or.1974), aff’d in part, 519 F.2d 961 (9th Cir. 1975). Thus, the “outer line of authority” test, recognized in Barr v. Matteo for determining when absolute immunity applies, is also relevant to a determination of qualified immunity. In this case, although the court dismissed the complaint on a 12(b)(6) F.R.Civ.P. motion," }, { "docid": "22190338", "title": "", "text": "S.Ct. at 2541: The sweeping claims of appellee would render Members of - Congress virtually immune from a wide range of crimes simply because the acts in question were peripherally related to their holding office. Such claims are inconsistent with the reading this Court has given, not only to the Speech or Debate Clause, but also to the other legislative privileges embodied in Art. I, § 6. Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583, was concerned with the validity of a subpoena requiring the assistant of a Senator to appear as a witness before a federal grand jury. The Senator intervened and asserted a violation of his constitutional privileges. With reference to the Freedom from Arrest Clause, the Court said, 408 U.S. at 615, 92 S.Ct. at 2622: It is, therefore, sufficiently plain that the constitutional freedom from arrest does not exempt Members of Congress from the operation of the ordinary criminal laws, even though imprisonment may prevent or interfere with the performance of their duties as Members. * * * Indeed, implicit in the narrow scope of the privilege of freedom from arrest is, as Jefferson noted, the judgment that legislators ought not to stand above the law they create but ought generally to be bound by it as are ordinary persons. Finally, we have O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674, decided January 15, 1974. The Court, although its language was general and perhaps dictum, touched on the vulnerability of judges to criminal process, and said, 414 U.S. 488, 503, 94 S.Ct. 669, 680, 38 L.Ed.2d 674: * * * we have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal depriva tions of constitutional rights. Cf. Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1879). On the contrary, the jud-ieally fashioned doctrine of offical immunity does not reach ‘so far as to immunize criminal conduct proscribed by an Act of Congress * * *' Gravel v. United States, 408 U.S. 606, 627," }, { "docid": "17707934", "title": "", "text": "Unlike federal speech or debate immunity, see United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966), common-law official immunity has not been extended to criminal liability. In O’Shea v. Littleton, 414 U.S. 488, 503, 94 S.Ct. 669, 680, 38 L.Ed.2d 674 (1974), the Court said: Thus judicial officers are not immune from criminal liability for conduct within the scope of their judicial duties. Braatelien v. United States, 147 F.2d 888, 895 (8th Cir. 1945); see also United States v. Manton, 107 F.2d 834 (2d Cir. 1939). State legislators are similarly subject to federal criminal liability for analogous conduct which falls within the prohibition of a federal criminal statute, as the Court stated in O’Shea. “[W]e have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights. ... On the contrary, the judicially fashioned doctrine of official immunity does not reach ‘so far as to immunize criminal conduct as proscribed by an Act of Congress. . . . ’ [Citing Gravel v. United States, supra, 408 U.S. at 627, 92 S.Ct. 2614]” Immunity from civil but not criminal liability has been regarded as sufficient to achieve the purpose of the doctrine of official immunity, which is to promote independence and fearless discharge of duty on the part of the protected officials. While the federal speech or debate clause serves the same purpose, it has an additional, more fundamental purpose grounded in the separation of powers in the federal government. As the Court said in Gravel v. United States, supra, 408 U.S. at 616, 617, 92 S.Ct. at 2622, 2623: “The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. “[T]he central role of the Speech or Debate Clause [is] to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary, United States v. Johnson, 383 U.S. 169, 181, 86 S.Ct. 749, 755, 15 L.Ed.2d 681 (1966)" }, { "docid": "17707932", "title": "", "text": "87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), to provide immunity to a judge for acts done in the course of his judicial duties. The speech or debate clause of the Federal Constitution protects members of Congress from being “questioned in any other Place” concerning, the Supreme Court has held, “legislative acts or the motivation for actual performance of legislative acts.” See United States v. Brewster, supra, 408 U.S. at 509, 92 S.Ct. at 2536. The clause provides both immunity from liability and a commensurate privilege against disclosure. Gravel v. United States, 408 U.S. 606, 616, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). The privilege against disclosure and the immunity from liability should also be commensurate when the basis for protection is common-law official immunity. Where there is no immunity, it would be incongruous, if not useless, to recognize an evidentiary privilege. Accordingly, I think that whether the claimed privilege should be recognized as a development in the federal common law of evidence depends on whether there is an underlying immunity. The common-law immunity of state legislators has not been held to be coextensive with that which members of Congress enjoy under the federal speech or debate clause. Even with respect to civil liability, speech-or-debate immunity is broader than official immunity. The former bars injunction actions directed at legislative activities of Congress. E. g., Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975); Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). The doctrine of official immunity, on the other hand, has been held by one court not to bar injunctive relief against state legislative activities which offend federal law, Jordan v. Hutcheson, 323 F.2d 597 (4th Cir. 1963), and in other cases federal injunctions against state legislative action have been sustained without discussion of the question of immunity. E. g., Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966); Bush v. Orleans Parish School Board, 191 F.Supp. 871 (E.D.La.), aff’d sub nom. Denny v. Bush, 367 U.S. 908, 81 S.Ct. 1917, 6 L.Ed.2d 1249 (1961)." }, { "docid": "856111", "title": "", "text": "U.S. 347, 352, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), a federal common law speech or debate privilege cannot logically exist. This conclusion is reinforced by the fact that none of the decisions of the Supreme Court recognizes such a privilege. Tenny v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), upon which the defendant relies heavily in support of his contention that the federal common law recognizes a speech or debate privilege applicable to state legislators, was not decided on that basis. Even though the Supreme Court in Tenny discussed at some length the speech or debate privilege, its holding was quite narrow, namely, that legislators are immune from civil suits for money damages brought under the Civil Rights Act (now codified at 42 U.S.C. §§ 1983,1985) for their legislative acts. In Tenny the Court was not applying a federal common law speech or debate privilege, but rather, was applying the common law doctrine of official immunity. In re Grand Jury Proceedings, supra at 581; United States v. Craig, 528 F.2d 773, 782 (1976); see United States v. DiCarlo, 565 F.2d 802, 806 (1977). Furthermore, I have been unable to find any decision of a federal appellate court, other than the dictum in In re Grand Jury Subpoenas, supra, that supports such a privilege. An indication that no federal common law speech or debate privilege exists can be discerned from the cases dealing with attempts to obtain injunctions against legislators. Although federal courts have declined to enjoin the acts of Congressmen, holding that such an interference with legislative acts would violate the Speech or Debate Clause of the Federal Constitution, Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975); Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973); Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969); similar attempts to obtain injunctions against state legislators have been successful. Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966); Jordan v. Hutcheson, 323 F.2d 597 (4th Cir. 1963); Bush" }, { "docid": "856114", "title": "", "text": "protection afforded state legislators is based on the common law doctrine of official immunity. United States v. DiCarlo, supra; United States v. Craig, supra. Although similar to the speech or debate privilege in its recognition of the need for government officials to be functionally independent, official immunity differs from the speech or debate privilege in significant respects. Some officials enjoy only a qualified immunity. Regardless of whether the immunity is absolute or qualified, its protection against liability for official acts does not extend to criminal prosecutions. Im-bler v. Pachtman, 424 U.S. 409, 429, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); O’Shea v. Little-ton, 414 U.S. 488, 503, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Gravel v. United States, 408 U.S. 606, 627, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972); United States v. DiCar-lo, 564 F.2d 802, 806 (1977); In re Grand Jury Subpoenas, supra at 581; United States v. Craig, supra; United States v. Anzelmo, 319 F.Supp. 1106, 1118-19 (E.D. La.1970). In O’Shea v. Littleton, supra, 414 U.S. at 503, 94 S.Ct. at 680, the Supreme Court stated: Whatever may be the case with respect to civil liability generally, see Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), or civil liability for willful corruption, see Alzua v. Johnson, 231 U.S. 106, 110-111, 34 S.Ct. 27, 58 L.Ed. 142 (1913); Bradley v. Fisher, 13 Wall. 335, 347, 350, 354, 20 L.Ed. 646 (1872), we have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights. Cf. Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1880). On the contrary, the judicially fashioned doctrine of official immunity does not reach “so far as to immunize criminal conduct proscribed by an Act of Congress . . . .” Gravel v. United States, 408 U.S. 606, 627, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). Because official immunity affords no protection from criminal liability for acts committed in an official capacity, it follows logically that in a criminal prosecution of a government official, official" }, { "docid": "13112352", "title": "", "text": "is barred by the doctrine. of judicial immunity. The doctrine of judicial immunity is, of course, well established in American jurisprudence, and applies to cases brought under the Civil Rights Acts. Pierson v. Ray, 386 U.S. 547, 554-555, 87 S.Ct. 1213, 1217-1218, 18 L.Ed.2d 288, 294-295 (1967); Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 346-356, 20 L.Ed. 646, 649-652 (1871). Generally stated, the doctrine of judicial immunity provides that a judge may not be held civilly liable for damages for acts committed within his judicial discretion. Pierson v. Ray, 386 U.S. at 553-554, 87 S.Ct. at 1217, 18 L.Ed.2d at 294; Bradley v. Fisher, 80 U.S. (13 Wall.) at 347, 20 L.Ed. at 649. Judicial immunity is thus neither an absolute nor an unlimited bar to any suit brought against a judge or judicial officer. Common-law immunities extend only so far as the interests of the common good demand protection for the holder of the office from liability for carrying out his official functions. The application of the doctrine of judicial immunity is restricted to its single objective of protecting judicial freedom in the process of deciding civil and criminal cases. Where the initiative and independence of the judiciary is not effectively impaired, the doctrine of judicial immunity does not hold. See Doe v. County of Lake, Indiana, 399 F.Supp. 553, 555-560 (N.D.Ind. 1975) (providing an excellent general discussion of judicial immunity). As one example, there is no official immunity from criminal liability. O’Shea v. Littleton, 414 U.S. 488, 503, 94 S.Ct. 669, 679, 38 L.Ed.2d 674, 687 (1974). In point, there is no judicial immunity to civil actions for equitable relief under 42 U.S.C. § 1983. Mitchum v. Foster, 407 U.S. 225, 242, 92 S.Ct. 2151, 2161, 32 L.Ed.2d 705, 717 (1972). Nor is a judicial officer immune from a civil action that complains of acts that are properly characterized as ministerial or administrative as opposed to judicial. The Supreme Court long ago established this ministerial distinction in the still valid and often-cited case of Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1879), wherein a state" }, { "docid": "17707935", "title": "", "text": ". . . ’ [Citing Gravel v. United States, supra, 408 U.S. at 627, 92 S.Ct. 2614]” Immunity from civil but not criminal liability has been regarded as sufficient to achieve the purpose of the doctrine of official immunity, which is to promote independence and fearless discharge of duty on the part of the protected officials. While the federal speech or debate clause serves the same purpose, it has an additional, more fundamental purpose grounded in the separation of powers in the federal government. As the Court said in Gravel v. United States, supra, 408 U.S. at 616, 617, 92 S.Ct. at 2622, 2623: “The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. “[T]he central role of the Speech or Debate Clause [is] to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary, United States v. Johnson, 383 U.S. 169, 181, 86 S.Ct. 749, 755, 15 L.Ed.2d 681 (1966) . ..” There being no problem of separation of powers between the federal executive (represented in this case by the United States Attorney) and a state legislature, the Constitution itself does not create an immunity for state legislators as it does for members of Congress. I see no need for the courts to do so either. Nothing in our history or in the authorities relied upon by the court in this case suggests that there is a threat of federal executive interference with the independence of state legislatures that would warrant extending the judicially developed doctrine of official immunity beyond its traditional boundaries. Accordingly, I would hold that the state legislator’s official immunity does not extend to liability under federal criminal statutes, and that he therefore has no commensurate official privilege against disclosure. In questioning the view that the existence of the privilege should depend upon whether there is a corresponding immunity, the majority states in footnote 5 that “[a] member of Congress is not immune from prosecution on charges of bribery or conflict of" }, { "docid": "856116", "title": "", "text": "immunity provides no evidentiary privilege against disclosure of his official acts or the motivation for them comparable to that accorded to Congressmen by their speech or debate privilege. United States v. DiCarlo, supra at 806-07; United States v. Craig, supra. Ill I am of the opinion that neither reason nor authority supports the transformation of the doctrine of official immunity into a federal common law speech or debate privilege. Nothing in our history, nor in any of the authorities cited by the defendant or relied upon by the dictum of the Third Circuit or the panel majority in United States v. Craig, supra, involved abuses of the type which would warrant the creation of such a privilege, namely, interference by the federal government with the independence of state legislators. I believe, however, that the nature of the American judicial and political systems makes remote such a possibility of interference. Before any prosecution against a state legislator can succeed the federal government must convince both a grand jury and a petit jury of the legislator’s corruption. This Court should be unwilling to assume that these bodies will act against a state legislator without the requisite proofs. Cf. United States v. Brewster, 408 U.S. 501, 522 n. 16, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972). Because the federal government can prosecute state legislators for violations of the federal criminal law, In re Grand Jury Subpoenas, supra; United States v. Craig, supra; cf. United v. Brewster, supra, we see no substantial increment in federal power over state legislators resulting from denial of the privilege. Indeed, the exclusion from evidence of legislative acts and legislative motivations may well make a conviction of a state legislator for violation of federal criminal law impossible. To permit state legislators to avoid with impunity federal criminal liability for their official acts, “perhaps even more than the increased [federal] power, would gravely undermine legislative integrity and defeat the right of the public to honest representation.” United States v. Brewster, supra at 524-25, 92 S.Ct. at 2543. Furthermore, an examination of the consequences of a holding that recognizes a federal" }, { "docid": "17707933", "title": "", "text": "legislators has not been held to be coextensive with that which members of Congress enjoy under the federal speech or debate clause. Even with respect to civil liability, speech-or-debate immunity is broader than official immunity. The former bars injunction actions directed at legislative activities of Congress. E. g., Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975); Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). The doctrine of official immunity, on the other hand, has been held by one court not to bar injunctive relief against state legislative activities which offend federal law, Jordan v. Hutcheson, 323 F.2d 597 (4th Cir. 1963), and in other cases federal injunctions against state legislative action have been sustained without discussion of the question of immunity. E. g., Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966); Bush v. Orleans Parish School Board, 191 F.Supp. 871 (E.D.La.), aff’d sub nom. Denny v. Bush, 367 U.S. 908, 81 S.Ct. 1917, 6 L.Ed.2d 1249 (1961). Unlike federal speech or debate immunity, see United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966), common-law official immunity has not been extended to criminal liability. In O’Shea v. Littleton, 414 U.S. 488, 503, 94 S.Ct. 669, 680, 38 L.Ed.2d 674 (1974), the Court said: Thus judicial officers are not immune from criminal liability for conduct within the scope of their judicial duties. Braatelien v. United States, 147 F.2d 888, 895 (8th Cir. 1945); see also United States v. Manton, 107 F.2d 834 (2d Cir. 1939). State legislators are similarly subject to federal criminal liability for analogous conduct which falls within the prohibition of a federal criminal statute, as the Court stated in O’Shea. “[W]e have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights. ... On the contrary, the judicially fashioned doctrine of official immunity does not reach ‘so far as to immunize criminal conduct as proscribed by an Act of Congress." }, { "docid": "856113", "title": "", "text": "v. Orleans Parish School Bd., 191 F.Supp. 871 (E.D.La.) (three-Judge District Court), aff’d sub nom., Denny v. Bush, 367 U.S. 908, 81 S.Ct. 1917, 6 L.Ed.2d 1249 (1961). Clearly if a federal common law speech or debate privilege exists, injunctive relief ágainst state legislative action which violates federal law could not be granted. Judges have no immunity for crimes committed by them during the terms of their office or prior thereto. United States v. Isaacs, 493 F.2d 1124 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974); United States v. Mantón, 107 F.2d 834 (2d Cir. 1938). Nor have the judges any privilege to exclude evidence of crimes committed by them. In Mantón the judge did not even question evidence showing that his opinions favored bribers. No federal official has ever been held exempt from prosecution for his commission of a federal crime. In my opinion it is apparent that no speech or debate privilege has been extended to state legislators as a matter of federal common law. Rather, any protection afforded state legislators is based on the common law doctrine of official immunity. United States v. DiCarlo, supra; United States v. Craig, supra. Although similar to the speech or debate privilege in its recognition of the need for government officials to be functionally independent, official immunity differs from the speech or debate privilege in significant respects. Some officials enjoy only a qualified immunity. Regardless of whether the immunity is absolute or qualified, its protection against liability for official acts does not extend to criminal prosecutions. Im-bler v. Pachtman, 424 U.S. 409, 429, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); O’Shea v. Little-ton, 414 U.S. 488, 503, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Gravel v. United States, 408 U.S. 606, 627, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972); United States v. DiCar-lo, 564 F.2d 802, 806 (1977); In re Grand Jury Subpoenas, supra at 581; United States v. Craig, supra; United States v. Anzelmo, 319 F.Supp. 1106, 1118-19 (E.D. La.1970). In O’Shea v. Littleton, supra, 414 U.S. at 503, 94 S.Ct. at 680, the" }, { "docid": "22190339", "title": "", "text": "* * Indeed, implicit in the narrow scope of the privilege of freedom from arrest is, as Jefferson noted, the judgment that legislators ought not to stand above the law they create but ought generally to be bound by it as are ordinary persons. Finally, we have O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674, decided January 15, 1974. The Court, although its language was general and perhaps dictum, touched on the vulnerability of judges to criminal process, and said, 414 U.S. 488, 503, 94 S.Ct. 669, 680, 38 L.Ed.2d 674: * * * we have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal depriva tions of constitutional rights. Cf. Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1879). On the contrary, the jud-ieally fashioned doctrine of offical immunity does not reach ‘so far as to immunize criminal conduct proscribed by an Act of Congress * * *' Gravel v. United States, 408 U.S. 606, 627, 92 S.Ct. 2614, 2628, 33 L.Ed.2d 583 (1972). Kerner’s argument for the privilege which he claims, is not supported by “the precise words used in any prior case, and surely not on the sense of those cases, fairly read.” Brewster, 408 U.S. at 516, 92 S.Ct. at 2539. We conclude that whatever immunities or privileges the Constitution confers for the purpose of assuring the independence of the co-equal branches of govern- . ment they do not exempt the members of those branches “from the operation of the ordinary criminal laws.” Criminal conduct is not part of the necessary functions performed by public officials. Punishment for that conduct will not interfere with the legitimate operations of a branch of government. Historically, the impeachment process has proven to be cumbersome and fraught with political overtones. We believe that the independence of the judiciary is better served when criminal charges against its members are tried in a court rather than in Congress. With a court trial, a judge is assured of the protections given to all those charged" }, { "docid": "17707931", "title": "", "text": "I disagree, however, with the court’s view that, absent waiver, the defendant could claim a speech or debate privilege under the federal common law of evidence. Several recent opinions of the Supreme Court have made it clear that the protection afforded state legislators from liability under federal law for acts done in their legislative roles, see Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), is not based upon the speech or debate clause of the Federal Constitution, see United States v. Brewster, 408 U.S. 501, 516 n. 10, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972), a clause that applies only to Congress, but rather upon the common-law doctrine of official immunity. See Wood v. Strickland, 420 U.S. 308, 316-318, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Scheuer v. Rhodes, 416 U.S. 232, 243-244, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Doe v. McMillan, 412 U.S. 306, 318-320, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973). This is the same doctrine that was applied in Pierson v. Ray, 386 U.S. 547, 554-555, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), to provide immunity to a judge for acts done in the course of his judicial duties. The speech or debate clause of the Federal Constitution protects members of Congress from being “questioned in any other Place” concerning, the Supreme Court has held, “legislative acts or the motivation for actual performance of legislative acts.” See United States v. Brewster, supra, 408 U.S. at 509, 92 S.Ct. at 2536. The clause provides both immunity from liability and a commensurate privilege against disclosure. Gravel v. United States, 408 U.S. 606, 616, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). The privilege against disclosure and the immunity from liability should also be commensurate when the basis for protection is common-law official immunity. Where there is no immunity, it would be incongruous, if not useless, to recognize an evidentiary privilege. Accordingly, I think that whether the claimed privilege should be recognized as a development in the federal common law of evidence depends on whether there is an underlying immunity. The common-law immunity of state" }, { "docid": "856110", "title": "", "text": "insure the independence of the legislature without altering the historic balance of the three co-equal branches of Government. [Footnote omitted.] To the same effect, see Gravel v. United States, 408 U.S. 606, 616, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972), in which the Court stated: The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process. [Id. at 616, 92 S.Ct. at 2622] [T]he central role of the Speech or Debate Clause [is] to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary, United States v. Johnson, 383 U.S. 169, 181 (1966) .... [Id. at 617, 92 S.Ct. at 2623] See also Doe v. McMillan, 412 U.S. 306, 311, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973). There being no problem of separation of powers between the federal government and a state legislator, Elrod v. Burns, 427 U.S. 347, 352, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), a federal common law speech or debate privilege cannot logically exist. This conclusion is reinforced by the fact that none of the decisions of the Supreme Court recognizes such a privilege. Tenny v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), upon which the defendant relies heavily in support of his contention that the federal common law recognizes a speech or debate privilege applicable to state legislators, was not decided on that basis. Even though the Supreme Court in Tenny discussed at some length the speech or debate privilege, its holding was quite narrow, namely, that legislators are immune from civil suits for money damages brought under the Civil Rights Act (now codified at 42 U.S.C. §§ 1983,1985) for their legislative acts. In Tenny the Court was not applying a federal common law speech or debate privilege, but rather, was applying the common law doctrine of official immunity. In re Grand Jury Proceedings, supra at 581; United States v. Craig, 528 F.2d" }, { "docid": "7856037", "title": "", "text": "U.S. 200, 101 S.Ct. 471, 66 L.Ed.2d 392 (1980). . The district court noted that “the record is totally devoid of any evidence whatsoever to support an allegation that the government’s motivation in bringing these criminal charges was vindictive or retaliatory.” . In addition to the specific safeguards contained in the Constitution, federal and state judges enjoy an absolute common law immunity from civil liability for acts committed in their official capacities. See Stump v. Sparkman, 435 U.S. 349, 355-57, 98 S.Ct. 1099, 1104-05, 55 L.Ed.2d 331 (1978); Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967). This immunity is premised upon a calculation that the public benefit derived from the judicial independence created by the immunity outweighs the sacrifice suffered by aggrieved individuals who are deprived of their civil remedies. Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 349, 20 L.Ed. 646 (1872); accord, Pierson v. Ray, 386 U.S. at 554, 87 S.Ct. at 1217-18. This calculation does not operate to create absolute immunity for judges from criminal prosecution. See O’Shea v. Littleton, 414 U.S. 488, 503, 94 S.Ct. 669, 679-80, 38 L.Ed.2d 674 (1974). A criminal proceeding, unlike a civil action, is not brought to vindicate an individual interest, but rather the public interest in law enforcement. The rule of absolute immunity from criminal prosecution of active federal judges for acts committed in their official capacities poses too great a threat to the public interest in the rule of law to be adopted by this court. See discussion in text infra. Cf. Dennis v. Sparks, 449 U.S. 24, 28 n.5, 101 S.Ct. 183, 187 n.5, 66 L.Ed.2d 185 (1980) (state judge who is immune from civil liability is not immune from criminal liability). We note that this is not a case in which a judge is prosecuted for acts in his official capacity undertaken in good faith. In such a case, there may exist a common law immunity from criminal prosecution. See Braatelien v. United States, 147 F.2d 888, 895 (8th Cir. 1945); Commonwealth v. Tartar, 239 S.W.2d 265, 266 (Ky.App.1951). The" } ]

[ { "docid": "4279439", "title": "", "text": "v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). The exhaustion requirement is satisfied if a prisoner invokes one complete round of the state’s established appellate review process, including a petition for discretionary review to a state supreme court. Id. Thus, state prisoners in Michigan must present their claims to the Michigan Court of Appeals and the Michigan Supreme Court before presenting them in a federal habeas corpus petition. Dombkowski v. Johnson, 488 F.2d 68, 70 (6th Cir.1973). As noted above, the petitioner’s application for leave to appeal the denial of his state collateral challenge was rejected by the clerk of the state supreme court as untimely, and therefore the petitioner has not satisfied the exhaustion requirement by raising his claims at all levels of state court review. He raised an ineffective-assistance-of-counsel claim on direct review of his conviction, but the underlying grounds were different from the ones supporting the habeas claims. Exhaustion of state remedies entails “presenting the legal and factual substance of every claim to all levels of state court review.” Pillette v. Foltz, 824 F.2d 494, 496 (6th Cir.1987). The mere similarity of the claims on direct review and on collateral review did not satisfy the exhaustion requirement. See Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995); see also Sampson v. Love, 782 F.2d 53, 55 (6th Cir.1986) (concluding that, when evidence presented in conjunction with a federal habeas petition places the claim in a significantly different posture than the manner in which it was presented in state court, “the state court must be given an opportunity to consider the claim in that posture”). But failure to exhaust bars review only when the state still provides a remedy to exhaust. Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994). The petitioner no longer has an effective state remedy to exhaust because the deadline for appealing the court of appeals decision to the state supreme court has expired. See Mich. Ct. R. 7.302(C)(3) (requiring applications for leave to appeal in the Michigan Supreme Court to be filed within" } ]

[ { "docid": "22388782", "title": "", "text": "Justice Breyer delivered the opinion of the Court. Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, 28 U. S. C. § 2254(b)(1), thereby giving the State the “ ‘ “opportunity to pass upon and correct” alleged violations of its prisoners’ federal rights.’ ” Duncan v. Henry, 513 U. S. 364, 365 (1995) (per curiam) (quoting Picard v. Connor, 404 U. S. 270, 275 (1971)). To provide the State with the necessary “opportunity,” the prisoner must “fairly present” his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim. Duncan, supra, at 365-366; O’Sullivan v. Boerckel, 526 U. S. 838, 845 (1999). This case focuses upon the requirement of “fair presentation.” I Michael Reese, the respondent, appealed his state-court kidnaping and attempted sodomy convictions and sentences through Oregon’s state court system. He then brought collateral relief proceedings in the state courts (where he was represented by appointed counsel). After the lower courts denied him collateral relief, Reese filed a petition for discretionary review in the Oregon Supreme Court. The petition made several different legal claims. In relevant part, the petition asserted that Reese had received “ineffective assistance of both trial court and appellate court counsel.” App. 47. The petition added that “his imprison ment is in violation of [Oregon state law].” Id., at 48. It said that his trial counsel’s conduct violated several provisions of the Federal Constitution. Ibid. But it did not say that his separate appellate “ineffective assistance” claim violated federal law. The Oregon Supreme Court denied review. Reese ultimately sought a federal writ of habeas corpus, raising, among other claims, a federal constitutional claim that his appellate counsel did not effectively represent him during one of his direct state-court appeals. The Federal District Court held that Reese had not “fairly presented” his federal “ineffective assistance of appellate counsel” claim to the higher state courts because his brief in the state appeals court had not indicated that he was complaining about a violation of" }, { "docid": "23589525", "title": "", "text": "District Court erred by concluding Nara exhausted his state court remedies with respect to his incompetency claim. The federal habeas statute requires state prisoners to exhaust available state court remedies before seeking federal relief. 28 U.S.C.A. § 2254(b) (2006); O’Sullivan v. Boerckel, 526 U.S. 838, 842,119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). Therefore, a state prisoner must “give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan, 526 U.S. at 845, 119 S.Ct. 1728; see also Woodford v. Ngo, — U.S. -, 126 S.Ct. 2378, 2386-87, 165 L.Ed.2d 368 (2006). A claim is exhausted if it was “fairly presented” to the state courts. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004); O’Sullivan v. Boerckel, 526 U.S. at 848, 119 S.Ct. 1728; Cristin v. Brennan, 281 F.3d 404, 410 (3d Cir.2002); Doctor v. Walters, 96 F.3d 675, 678 (3d Cir.1996). A petitioner has fairly presented his claim if he presented the same factual and legal basis for the claim to the state courts. See Duncan v. Henry, 513 U.S. 364, 366, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam). A petitioner can “fairly present” his claim through: (a) reliance on pertinent federal cases; (b) reliance on state cases employing constitutional analysis in like fact situations; (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution; and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation. McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir.1999). Even if a state court refuses to consider the claim on procedural grounds, it is still exhausted as long as the state court had the opportunity to address it. Bond v. Fulcomer, 864 F.2d 306, 309 (3d Cir.1989); Pursell v. Horn, 187 F.Supp.2d 260, 288 (W.D.Pa.2002) (Smith, J.). Nara’s incompetency claim arises under the Due Process clause of the Fourteenth Amendment. Due process prohibits a court from accepting a guilty plea unless it is entered “competently,” “knowingly" }, { "docid": "18123617", "title": "", "text": "F.3d 908, 911-12 (7th Cir.2000). Inherent in the habeas petitioner’s obligation to exhaust his state court remedies before seeking relief in habeas corpus, see 28 U.S.C. § 2254(b)(1)(A), is the duty to fairly present his federal claims to the state courts. Baldwin v. Reese, 541 U.S. 27, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004); O’Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1 (1999); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). “Only if the state courts have had the first opportunity to hear the claim sought to be vindicated in the federal habeas proceeding does it make sense to speak of the exhaustion of state remedies.” Id. at 276, 92 S.Ct. at 512. Fair presentment in turn requires the petitioner to assert his federal claim through one complete round of state-court review, either on direct appeal of his conviction or in post-conviction proceedings. Boerckel, 526 U.S. at 845, 119 S.Ct. at 1732-33. This means that the petitioner must raise the issue at each and every level in the state court system, including levels at which review is discretionary rather than mandatory. Ibid. A habeas petitioner who has exhausted his state court remedies without properly asserting his federal claim at each level of state court review has procedurally defaulted that claim. See id. at 848-49, 119 S.Ct. at 1734; see also, e.g., Howard v. O’Sullivan, 185 F.3d 721, 725 (7th Cir.1999); Momient-El v. DeTella, 118 F.3d 535, 541 (7th Cir.1997). A procedural default will bar federal habeas relief unless the petitioner can demonstrate both cause for and prejudice stemming from that default, Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977), or he can establish that the denial of relief will result in a miscarriage of justice, Murray v. Carrier, 477 U.S. 478, 495-96, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986). Cause for a default is ordinarily established by showing that some type of external impediment prevented the petitioner from presenting his federal claim to the state courts. Id. at" }, { "docid": "8923556", "title": "", "text": "Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)); Baldwin, 541 U.S. at 29, 124 S.Ct. 1347. “To provide the State with the necessary ‘opportunity,’ the prisoner must ‘fairly present’ his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim.” Baldwin, 541 U.S. at 29, 124 S.Ct. 1347 (quoting Duncan, 513 U.S. at 365-366, 115 S.Ct. 887); O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Perruquet v. Briley, 390 F.3d 505, 513 (7th Cir.2004). Adequate presentation of a claim to the state courts requires the petitioner to present both the operative facts and the legal principles that control each claim. Pole, 570 F.3d at 934-35. See also Harrison v. McBride, 428 F.3d 652, 661 (7th Cir.2005) (at its core, the task of the habeas court is to assess, in concrete, practical terms, whether the state cpurt was sufficiently alerted to the federal constitutional nature of the issue to permit it to resolve that issue on a federal basis). At no stage of the state proceedings did Bolton present a claim that his due process rights were violated by a suggestive lineup procedure. Indeed, on direct appeal, Bolton failed to present any claim through a complete round of state court review because he failed to seek leave to appeal his case to the Illinois Supreme Court. Moreover, to the extent that he raised the suggestive identification issue in his direct appeal (which was the only pleading in which he cited a relevant federal case regarding a due process right to a fair lineup), he claimed only that a police officer told Smith to select him from the lineup, and never contended that the participants in the lineup were grossly dissimilar in appearance. In any case, because he did not move for leave to appeal to the Illinois Supreme Court in his direct appeal, he may not rely on his direct appeal to satisfy the exhaustion requirement. Boerckel, 526 U.S. at 848, 119" }, { "docid": "21706228", "title": "", "text": "for cause in question. a. The Duty to Exhaust Available State Remedies Before seeking federal habeas corpus relief, a state prisoner must exhaust available state remedies thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners’ federal rights. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004); O’Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); 28 U.S.C. § 2254(b)(i). To provide the State with this necessary “opportunity,” the prisoner must “fairly present” his claim to the appropriate state court in a manner that alerts that court to the federal nature of the claim. See Baldwin v. Reese, 541 U.S. at 29-32, 124 S.Ct. 1347 (rejecting the argument a petitioner “fairly presents” a federal claim, despite failing to give any indication in his appellate brief of the federal nature of the claim through reference to any federal source of law, when the state appellate court could have discerned the federal nature of the claim through review of the lower state court opinion); O’Sullivan v. Boerckel, 526 U.S. at 844-45, 119 S.Ct. 1728 (holding comity requires a state prisoner present the state courts with the first opportunity to review a federal claim by invoking one complete round of that State’s established appellate review process); Gray v. Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996) (holding that, for purposes of exhausting state remedies, a claim for fed eral relief must include reference to a specific constitutional guarantee, as well as a statement of facts that entitle the petitioner to relief and rejecting the contention that the exhaustion requirement is satisfied by presenting the state courts only with the facts necessary to state a claim for relief). The exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal" }, { "docid": "17420996", "title": "", "text": "courts’ adjudication of his claim was irreconcilable with federal law — there was no state-court ruling for him to critique. The conspicuous absence of any state-court decision on Perruquet’s due process claim does beg an explanation, however, and that explanation in turn will dictate how we shall proceed to address the claim. The State contends that the lack of a state-court ruling is explained by Perruquet’s failure to invoke the United States constitution while he was pursuing his state-court remedies. That failure, as the State sees it, bars us from reaching the merits of Perruquet’s claim. Perruquet, on the other hand, contends that he did present the due process claim to the state courts and that they simply failed to address that claim. As a result, Perruquet reasons, this court may not only reach the merits of that claim, but should do so without the usual degree of deference that we would accord to the state court’s rationale pursuant to section 2254(d)(1). See Newell v. Hanks, 335 F.3d 629, 631-32 (7th Cir.2003); Aleman v. Sternes, 320 F.3d 687, 690 (7th Cir.), cert. denied, 539 U.S. 960, 123 S.Ct. 2653, 156 L.Ed.2d 659 (2003). Before seeking a writ of habeas corpus in federal court, a petitioner must first exhaust the remedies available to him in state court. 28 U.S.C. § 2254(b)(1)(A). Exhaustion serves an interest in federal-state comity by giving state courts the first opportunity to address and correct potential violations of a prisoner’s federal rights. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); see also O’Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1 (1999). For that opportunity to be meaningful, the petitioner must fairly present to each appropriate state court his constitutional claims before seeking relief in federal court. Baldwin v. Reese, 541 U.S. 27, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004); Boerckel, 526 U.S. at 845, 119 S.Ct. at 1732-33; Picard, 404 U.S. at 275, 92 S.Ct. at 512; Momient-El v. DeTella, 118 F.3d 535, 538 (7th Cir.1997). If the exhaustion doctrine is to prevent" }, { "docid": "19914191", "title": "", "text": "to a magistrate judge, who recommended granting an evidentiary hearing to determine whether the state courts violated the petitioner’s federal constitutional rights in denying postconviction relief based on Quantez’s recantation. The district court rejected this recommendation and dismissed the petition in its entirety. The district court did, however, grant a certificate of appeal-ability, see 28 U.S.C. § 2253(c), on the question whether “the state court erred by failing to hold an evidentiary hearing on the credibility of the eyewitness’s [ie., Quantez’s] recantation of his trial testimony.” Before seeking habeas corpus relief under § 2254, a prisoner ordinarily must “fairly present” his federal claims to the state courts. See, e.g., Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). This requirement serves the salutary purpose of giving states the “opportunity to pass upon and correct alleged violations of [their] prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam) (internal quotation marks omitted) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)). The onus rests on the prisoner to present the substance of his federal claims “in each appropriate state court (including a state supreme court with powers of discretionary review).” Baldwin, 541 U.S. at 29, 124 S.Ct. 1347; see also Henry, 513 U.S. at 365-66, 115 S.Ct. 887 (“If state courts are to be given the opportunity to correct alleged violations of prisoners’ federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution.”). It is not enough to recite “only ... the facts necessary to state a claim for relief,” Gray v. Netherland, 518 U.S. 152, 163, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996) (citing Picard, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438), or to “make a general appeal to a constitutional guarantee as broad as due process,” id. (citing Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) (per curiam)). Likewise, “[m]ere similarity between ... state law claims and ... federal habeas" }, { "docid": "21214439", "title": "", "text": "of procedural default because the Texas writ-abuse statute effectively precludes petitioner from returning to state court at this juncture to obtain a ruling on the merits of this new argument. 1. Procedural Default Generally Procedural default occurs where (1) a state court clearly and expressly bases its dismissal of a claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, or (2) the petitioner fails to exhaust all available state remedies, and the state court to which he would be required to petition would now find the claims procedurally barred. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991). In either instance, the petitioner is deemed to have forfeited his federal habeas claim. O’Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 1734, 144 L.Ed.2d 1 (1999). Procedural defaults only bar federal habeas review when the state procedural rule which forms the basis for the procedural default was “firmly established and regularly followed” by the time it was applied to preclude state judicial review of the merits of a federal constitutional claim. Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 857-58, 112 L.Ed.2d 935 (1991). 2. Failure to Exhaust Can Produce Procedural Default Before seeking federal habeas corpus relief, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners’ federal rights. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004); O’Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731, 144 L.Ed.2d 1 (1999); Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); 28 U.S.C. § 2254(b)(1). To provide the State with this necessary “opportunity,” the prisoner must “fairly present” his claim to the appropriate state court in a manner that alerts that court to the federal nature of the claim. See Baldwin v. Reese, 541" }, { "docid": "1460618", "title": "", "text": "the missing evidence or testimony would have been, a court cannot begin to apply the Strickland analysis because it is very difficult to determine whether the defendant was prejudiced by any such deficiencies in counsel’s performance). Under such circumstances, petitioner has failed to allege any specific facts sufficient to satisfy any of the prongs of the Giglio-Napue standard. VII. Jury Misconduct Claims A. The Claims In his final claim herein, petitioner alleges: (1) Rosemary Harrell engaged in misconduct by testifying falsely during her voir dire testimony and (2) one or more members of petitioner’s jury “may have” engaged in unspecified misconduct during deliberations. B. Procedural Default on Unexhausted Claims 1. Failure to Fairly Present Misconduct Claim as a Federal Constitutional Claim Petitioner argued in his state ha-beas corpus application Mrs. Harrell’s allegedly false voir dire testimony prevented him from properly exercising his peremptory challenges and, thereby, violated his rights under applicable Texas statutes and state constitutional provisions. However, nothing in this portion of petitioner’s state habeas corpus pleading suggested, implied, or otherwise reasonably advised the state habeas court that petitioner was attempting to present a federal constitutional complaint Mrs. Harrell’s allegedly false testimony constituted jury misconduct. Petitioner cited to no federal case law, no federal statutory or constitutional provisions, and no other federal legal authority to support this claim for state ha-beas corpus relief. A state prisoner must exhaust available state remedies thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners’ federal rights. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004); O’Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731, 144 L.Ed.2d 1 (1999); Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); 28 U.S.C. § 2254(b)(1). To provide the State with this necessary “opportunity,” the prisoner must “fairly present” his claim to the appropriate state court in a manner that alerts that court to the federal nature of the claim. See Baldwin" }, { "docid": "17420997", "title": "", "text": "320 F.3d 687, 690 (7th Cir.), cert. denied, 539 U.S. 960, 123 S.Ct. 2653, 156 L.Ed.2d 659 (2003). Before seeking a writ of habeas corpus in federal court, a petitioner must first exhaust the remedies available to him in state court. 28 U.S.C. § 2254(b)(1)(A). Exhaustion serves an interest in federal-state comity by giving state courts the first opportunity to address and correct potential violations of a prisoner’s federal rights. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); see also O’Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1 (1999). For that opportunity to be meaningful, the petitioner must fairly present to each appropriate state court his constitutional claims before seeking relief in federal court. Baldwin v. Reese, 541 U.S. 27, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004); Boerckel, 526 U.S. at 845, 119 S.Ct. at 1732-33; Picard, 404 U.S. at 275, 92 S.Ct. at 512; Momient-El v. DeTella, 118 F.3d 535, 538 (7th Cir.1997). If the exhaustion doctrine is to prevent unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution, it is not sufficient merely that the federal habeas applicant has been through the state courts. The rule would serve no purpose if it could be satisfied by raising one claim in the state courts and another in the federal courts. Only if the state courts have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding does it make sense to speak of the exhaustion of state remedies. Accordingly, we have required a state prisoner to present the state courts with the same claim he urges upon the federal courts. Picard, 404 U.S. at 275-76, 92 S.Ct. at 512 (internal quotation marks and citations omitted). Presenting the “same claim” in state court that he later seeks to make in federal court means that the petitioner must alert the state courts that he is relying on a provision of the federal constitution for relief. Duncan v. Henry, 513, U.S. 364, 365-66, 115 S.Ct." }, { "docid": "1460619", "title": "", "text": "state habeas court that petitioner was attempting to present a federal constitutional complaint Mrs. Harrell’s allegedly false testimony constituted jury misconduct. Petitioner cited to no federal case law, no federal statutory or constitutional provisions, and no other federal legal authority to support this claim for state ha-beas corpus relief. A state prisoner must exhaust available state remedies thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners’ federal rights. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004); O’Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731, 144 L.Ed.2d 1 (1999); Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); 28 U.S.C. § 2254(b)(1). To provide the State with this necessary “opportunity,” the prisoner must “fairly present” his claim to the appropriate state court in a manner that alerts that court to the federal nature of the claim. See Baldwin v. Reese, 541 U.S. at 29-33, 124 S.Ct. at 1349-51 (rejecting the argument a petitioner “fairly presents” a federal claim, despite failing to give any indication in his appellate brief of the federal nature of the claim through reference to any federal source of law, when the state appellate court could have discerned the federal nature of the claim through review of the lower state court opinion); O’Sullivan v. Boerckel, 526 U.S. at 844-45, 119 S.Ct. at 1732-33 (holding comity requires a state prisoner present the state courts with the first opportunity to review a federal claim by invoking one complete round of that State’s established appellate review process); Gray v. Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 2074, 2081, 135 L.Ed.2d 457 (1996) (holding for purposes of exhausting state remedies, a claim for federal relief must include reference to a specific constitutional guarantee, as well as a statement of facts that entitle the petitioner to relief and rejecting the contention the exhaustion requirement is satisfied by presenting the state courts only with the facts" }, { "docid": "12159533", "title": "", "text": "judgment that the state-court decision applied a [United States] Supreme Court case incorrectly. Rather it is the habeas applicant’s burden to show that the state court applied [that case] to the facts of his case in an objectively unreasonable manner. Price v. Vincent, 538 U.S. 634, 641, 123 S.Ct. 1848, 155 L.Ed.2d 877 (2003) (quotation marks, citations and brackets omitted). Thus, the United States Supreme Court has made clear that it is not for this court to decide the merits of the petitioner’s arguments from scratch. Rather, the task laid out before this court in a § 2254 habe-as corpus petition is to determine whether the decision of the state court, in this case the Supreme Court of Indiana, falls outside of that broad swath of reasonable interpretations of the law based solely on the holdings of United States Supreme Court opinions at the time of the state court decision. Additionally, there is the question of procedural default where a petitioner has not properly raised a question before the state’s highest court. Inherent in the habeas petitioner’s obligation to exhaust his state court remedies before seeking relief in habeas corpus, see 28 U.S.C. § 2254(b)(1)(A), is the duty to fairly present his federal claims to the state courts. Baldwin v. Reese, 541 U.S. 27, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004); O’Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). “Only if the state courts have had the first opportunity to hear the claim sought to be vindicated in the federal habeas proceeding does it make sense to speak of the exhaustion of state remedies.” Id. at 276, 92 S.Ct. 509. Fair presentment in turn requires the petitioner to assert his federal claim through one complete round of state-court review, either on direct appeal of his conviction or in post-conviction proceedings. Boerckel, 526 U.S. at 845, 119 S.Ct. 1728. This means that the petitioner must raise the issue at each and every level in the state court system, including levels at" }, { "docid": "21214440", "title": "", "text": "time it was applied to preclude state judicial review of the merits of a federal constitutional claim. Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 857-58, 112 L.Ed.2d 935 (1991). 2. Failure to Exhaust Can Produce Procedural Default Before seeking federal habeas corpus relief, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners’ federal rights. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004); O’Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731, 144 L.Ed.2d 1 (1999); Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); 28 U.S.C. § 2254(b)(1). To provide the State with this necessary “opportunity,” the prisoner must “fairly present” his claim to the appropriate state court in a manner that alerts that court to the federal nature of the claim. See Baldwin v. Reese, 541 U.S. at 29-32, 124 S.Ct. at 1349-51 (rejecting the argument that a petitioner “fairly presents” a federal claim, despite failing to give any indication in his appellate brief of the federal nature of the claim through reference to any federal source of law, when the state appellate court could have discerned the federal nature of the claim through review of the lower state court opinion); O’Sullivan v. Boerckel, 526 U.S. at 844-45, 119 S.Ct. at 1732-33 (holding comity requires that a state prisoner present the state courts with the first opportunity to review a federal claim by invoking one complete round of that State’s established appellate review process); Gray v. Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 2074, 2081, 135 L.Ed.2d 457 (1996) (holding that, for purposes of exhausting state remedies, a claim for federal relief must include reference to a specific constitutional guarantee, as well as a statement of facts that entitle the petitioner to relief and rejecting the contention that the exhaustion requirement is satisfied by presenting the state courts only with the" }, { "docid": "8923555", "title": "", "text": "in a habeas petition are deemed waived and cannot be raised for the first time on appeal). B. But even if we do not treat the issue as waived, Bolton failed to meet the exhaustion requirement of the AEDPA because he did not fairly present this claim to any of the state courts that reviewed his case, much less present it through a complete round of state court review. Pole, 570 F.3d at 934 (under section 2254’s exhaustion requirement, a petitioner must assert his federal claim through one complete round of state court review, either on direct review or in post-conviction proceedings). The AEDPA requires state prisoners seeking a federal writ of habeas corpus to exhaust available state remedies. 28 U.S.C. § 2254(b)(1); Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). The exhaustion requirement provides the State an “ ‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)); Baldwin, 541 U.S. at 29, 124 S.Ct. 1347. “To provide the State with the necessary ‘opportunity,’ the prisoner must ‘fairly present’ his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim.” Baldwin, 541 U.S. at 29, 124 S.Ct. 1347 (quoting Duncan, 513 U.S. at 365-366, 115 S.Ct. 887); O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Perruquet v. Briley, 390 F.3d 505, 513 (7th Cir.2004). Adequate presentation of a claim to the state courts requires the petitioner to present both the operative facts and the legal principles that control each claim. Pole, 570 F.3d at 934-35. See also Harrison v. McBride, 428 F.3d 652, 661 (7th Cir.2005) (at its core, the task of the habeas court is to assess, in concrete, practical terms, whether the state cpurt was sufficiently alerted to the federal constitutional nature of the" }, { "docid": "15715963", "title": "", "text": "the state court system that the petitioner is claiming the violation of the federal constitution that the petitioner subsequently claims in the federal habeas petition. That is, “the prisoner must ‘fairly present’ his claim in each appropriate state court ... thereby alerting that court to the federal nature of the claim.” If she does not say so, then she does not “fairly present” the federal claim to the state court. It may not take much, and as we held in Peterson, the inquiry is not mechanical, but requires examination of what the petitioner said and the context in which she said it. To exhaust a federal constitutional claim in state court, a petitioner has to have, at the least, explicitly alerted the court that she was making a federal constitutional claim. Galvan did not. AFFIRMED. . Galvan v. State, Mem. Op. & J. No. 2456 (Alaska App., July 8, 1992) (unpublished). . Risher v. State, 523 P.2d 421, (Alaska 1974). . Id. at 426. . Strader v. Garrison, 611 F.2d 61, 64-65 (4th Cir.1979). . 28 U.S.C. § 2254(b)(1). . O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). . Id. at 839-40, 119 S.Ct. 1728. . Baldwin v. Reese, 541 U.S. 27, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (internal quotation marks and citations omitted). . Id. at 1351. . Peterson v. Lampert, 319 F.3d 1153, 1156, 1159 (9th Cir.2003) (en banc) (“Especially here, where a counseled petitioner raised both the state and federal issues in his briefing before the court of appeals, but then omitted the federal issue before the Oregon Supreme Court, there is reason to conclude that such omission may be a strategic choice by counsel not to present the federal issue in the hope of convincing the Oregon Supreme Court to exercise its discretion to review.”). . Id. . Id. . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). . See, e.g., RLR v. State, 487 P.2d 27, 35 (Alaska 1971) (holding that in Alaska, “children are constitutionally entitled to a juiy trial in" }, { "docid": "21706227", "title": "", "text": "S.Ct. 1417, 134 L.Ed.2d 542 (1996). Even assuming under a proper view of applicable state-law principles the state trial court should have granted one or more of petitioner’s challenges for cause to the venire members in question, or denied the state’s challenge for cause to venire member Ramon, that error did not necessarily deprive petitioner of an impartial jury or a fundamentally fair trial. See Fuller v. Johnson, 158 F.3d 903, 908 (5th Cir.1998) (holding a convicted capital murder defendant’s complaint that one of his jurors was disqualified from jury service under Texas law failed to assert a basis for federal habeas relief in the absence of a showing the juror’s service rendered the entire trial fundamentally unfair), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999). 2. Procedural Default on Unexhausted Constitutional Claims Respondent correctly argues the petitioner has failed to exhaust available state remedies and thereby procedurally defaulted on the federal constitutional gloss petitioner now seeks to add to his complaints about the state trial court’s rulings on the challenges for cause in question. a. The Duty to Exhaust Available State Remedies Before seeking federal habeas corpus relief, a state prisoner must exhaust available state remedies thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners’ federal rights. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004); O’Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); 28 U.S.C. § 2254(b)(i). To provide the State with this necessary “opportunity,” the prisoner must “fairly present” his claim to the appropriate state court in a manner that alerts that court to the federal nature of the claim. See Baldwin v. Reese, 541 U.S. at 29-32, 124 S.Ct. 1347 (rejecting the argument a petitioner “fairly presents” a federal claim, despite failing to give any indication in his appellate brief of the federal nature of the" }, { "docid": "83867", "title": "", "text": "1347, 1349, 158 L.Ed.2d 64 (2004); O’Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731, 144 L.Ed.2d 1 (1999); Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); 28 U.S.C. § 2254(b)(1). To provide the State with this necessary “opportunity,” the prisoner must “fairly present” his claim to the appropriate state court in a manner that alerts that court to the federal nature of the claim. See Baldwin v. Reese, 541 U.S. at 29-32, 124 S.Ct. at 1349-51 (rejecting the argument that a petitioner “fairly presents” a federal claim, despite failing to give any indication in his appellate brief of the federal nature of the claim through reference to any federal source of law, when the state appellate court could have discerned the federal nature of the claim through review of the lower state court opinion); O’Sullivan v. Boerckel, 526 U.S. at 844-45, 119 S.Ct. at 1732-33 (holding comity requires that a state prisoner present the state courts with the first opportunity to review a federal claim by invoking one complete round of that State’s established appellate review process); Gray v. Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 2074, 2081, 135 L.Ed.2d 457 (1996) (holding that, for purposes of exhausting state remedies, a claim for federal relief must include reference to a specific constitutional guarantee, as well as a statement of facts that entitle the petitioner to relief and rejecting the contention that the exhaustion requirement is satisfied by presenting the state courts only with the facts necessary to state a claim for relief). The exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts and, thereby, to protect the state courts’ role in the enforcement of federal law and prevent disruption of state judicial proceedings. Carey v. Saffold, 536 U.S. 214, 220, 122 S.Ct. 2134, 2138, 153 L.Ed.2d 260 (2002); Duncan v. Walker, 533 U.S. 167, 179, 121" }, { "docid": "83866", "title": "", "text": "precisely what the testimony of Barbara Boyd on the subject in question would have been, and (4) the evidence in question was properly excluded on relevance grounds because, unlike petitioner’s first trial, there was no evidence of self-defense raised by the evidence at petitioner’s second trial (more specifically by virtue of the fact petitioner’s eyewitness at his second trial, Robert Mays, admitted he had left the scene several minutes before petitioner shot into Clark and Boyd’s vehicle and he never saw petitioner do so). The Texas Court of Criminal Appeals adopted the foregoing conclusions. Ex parte Moore, No. 40,046-02 (Tex.Crim.App. May 14, 2003), slip op. at p. 2. C. Procedural Default Respondent correctly argues petitioner failed to “fairly present” the federal constitutional component of this ground for federal habeas relief to the state courts. Before seeking federal habeas corpus relief, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners’ federal rights. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004); O’Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731, 144 L.Ed.2d 1 (1999); Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); 28 U.S.C. § 2254(b)(1). To provide the State with this necessary “opportunity,” the prisoner must “fairly present” his claim to the appropriate state court in a manner that alerts that court to the federal nature of the claim. See Baldwin v. Reese, 541 U.S. at 29-32, 124 S.Ct. at 1349-51 (rejecting the argument that a petitioner “fairly presents” a federal claim, despite failing to give any indication in his appellate brief of the federal nature of the claim through reference to any federal source of law, when the state appellate court could have discerned the federal nature of the claim through review of the lower state court opinion); O’Sullivan v. Boerckel, 526 U.S. at 844-45, 119 S.Ct. at 1732-33 (holding comity requires that a" }, { "docid": "12159534", "title": "", "text": "habeas petitioner’s obligation to exhaust his state court remedies before seeking relief in habeas corpus, see 28 U.S.C. § 2254(b)(1)(A), is the duty to fairly present his federal claims to the state courts. Baldwin v. Reese, 541 U.S. 27, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004); O’Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). “Only if the state courts have had the first opportunity to hear the claim sought to be vindicated in the federal habeas proceeding does it make sense to speak of the exhaustion of state remedies.” Id. at 276, 92 S.Ct. 509. Fair presentment in turn requires the petitioner to assert his federal claim through one complete round of state-court review, either on direct appeal of his conviction or in post-conviction proceedings. Boerckel, 526 U.S. at 845, 119 S.Ct. 1728. This means that the petitioner must raise the issue at each and every level in the state court system, including levels at which review is discretionary rather than mandatory. Ibid. A habeas petitioner who has exhausted his state court remedies without properly asserting his federal claim at each level of state court review has procedurally defaulted that claim. See id. at 848-49, 119 S.Ct. 1728; see also, e.g., Howard v. O’Sullivan, 185 F.3d 721, 725 (7th Cir.1999); Momient-El v. DeTella, 118 F.3d 535, 541 (7th Cir.1997). A procedural default will bar federal habe-as relief unless the petitioner can demonstrate both cause for and prejudice stemming from that default, Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), or he can establish that the denial of relief will result in a miscarriage of justice, Murray v. Carrier, 477 U.S. 478, 495-96, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Cause for a default is ordinarily established by showing that some type of external impediment prevented the petitioner from presenting his federal claim to the state courts. Id. at 488, 492, 106 S.Ct. 2639. Prejudice is established by showing that the violation of the petitioner’s" }, { "docid": "18123616", "title": "", "text": "original answer to the habeas petition. The court indicated that it was “unwilling” to find such a waiver in view of the fact that federal review of Lewis’s claims had not proceeded beyond the initial stage and the rules governing habeas corpus proceedings contemplated amendment of pleadings as appropriate. Id. The district court later agreed to certify for appeal the question whether it is proper to permit the State to belatedly assert instances of procedural default not raised in its original answer. It also certified for appeal the question whether Lewis’s habe-as claims were, indeed, procedurally defaulted. Lewis v. Sternes, No. 02 C 2905, 2003 WL 22682319 (N.D.Ill. Nov.13, 2003). II. The district court’s determination that Lewis procedurally defaulted each of the claims asserted in his habeas petition was a legal determination. E.g., Abela v. Martin, 380 F.3d 915, 922 (6th Cir.2004); Villot v. Varner, 373 F.3d 327, 331 (3d Cir.2004). Our review of the lower court’s decision is therefore de novo. Page v. Frank, 343 F.3d 901, 905 (7th Cir.2003); Braun v. Powell, 227 F.3d 908, 911-12 (7th Cir.2000). Inherent in the habeas petitioner’s obligation to exhaust his state court remedies before seeking relief in habeas corpus, see 28 U.S.C. § 2254(b)(1)(A), is the duty to fairly present his federal claims to the state courts. Baldwin v. Reese, 541 U.S. 27, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004); O’Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1 (1999); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). “Only if the state courts have had the first opportunity to hear the claim sought to be vindicated in the federal habeas proceeding does it make sense to speak of the exhaustion of state remedies.” Id. at 276, 92 S.Ct. at 512. Fair presentment in turn requires the petitioner to assert his federal claim through one complete round of state-court review, either on direct appeal of his conviction or in post-conviction proceedings. Boerckel, 526 U.S. at 845, 119 S.Ct. at 1732-33. This means that the petitioner must raise the issue" } ]

[ { "docid": "2635977", "title": "", "text": "Sonne testified for the government that he saw a woman named Paula sign the name Tito Rodriguez to a number of documents which appeared to be leases, under Estabrook’s instructions. Estabrook has not attacked the sufficiency of the evidence, and further evidence will be outlined only as it is material to the points that have been raised on appeal. Following the trial Estabrook was convicted of one count relating to the tractors stolen in Kansas. I. Estabrook first argues that the district court erred in admitting as evidence of other bad acts under Federal Rule of Evidence 404(b) the other equipment leases, testimony relating to these leases, and testimony that the equipment’ covered by these leases was stolen. The district court admitted the evidence, with the customary cautionary instruction, as probative of the appellant’s state of mind after an offer of proof by the government during its case-in-chief. The test in this circuit for admission of other act evidence under Rule 404(b) requires a showing that: (1) the evidence of the other act must be relevant to a material issue; (2) the other act must be similar in kind and reasonably close in time to the crime charged; (3) the evidence of the other act must be clear and convincing; and (4) the probative value of the evidence must not be outweighed by its prejudice. United States v. Gustafson, 728 F.2d 1078, 1083 (8th Cir.), cert. denied, — U.S. —, 105 S.Ct. 380, 83 L.Ed.2d 315 (1984); United States v. Miller, 725 F.2d 462, 466 (8th Cir.1984). This circuit views rule 404(b) as one of inclusion, permitting admission of other crimes, wrongs, or bad acts material to an issue at trial, unless the evidence tends to prove only the defendant’s criminal disposition. United States v. Wagoner, 713 F.2d 1371, 1375 (8th Cir.1983); United States v. Boykin, 679 F.2d 1240, 1244 (8th Cir.1982). The trial court is vested with broad discretion in determining whether to admit wrongful act evidence. Wagoner, 713 F.2d at 1375. The trial court’s determination will not be disturbed unless the appellant can show that the evidence in" } ]

[ { "docid": "21759729", "title": "", "text": "legal error in the military judge’s ruling under Mil.R.Evid. 404(b). See United States v. Orsburn, 31 MJ 182, 187 (CMA 1990). See generally Story v. Collins, 920 F.2d 1247, 1254 (5th Cir.1991). The more difficult problem in this case arises under the second granted issue. It stems particularly from the portion of [I]’s testimony concerning the more serious acts of sexual misconduct perpetrated upon her by appellant. She testified that her father orally and anally sodomized her on several occasions and attempted to sexually assault her sister, [AA], when they lived at Fort Riley. We note that trial counsel had earlier conceded that [I]’s testimony on the sodomies would not be adduced by the Government because of its potential for prejudice. Moreover, the judge ruled that testimony by [AA] concerning appellant’s one-time attempt to sexually assault her would also not be admissible at this court-martial. Admissibility of this testimony under Mil.R.Evid. 403 was highly questionable. Appellant was only charged with fondling his minor daughter. The uncharged acts of sodomy were clearly more egregious and more reprehensible than those acts or the uncharged acts of fondling. See United States v. Fortenberry, 860 F.2d 628, 632 (5th Cir.1988), cert. denied, — U.S. -, 111 S.Ct. 1333, 113 L.Ed.2d 265 (1991); cf. United States v. Brooks, 670 F. 2d 625, 628 (5th Cir.1982). A strong possibility of prejudice existed on this basis alone. See generally E. Imwinkelried, Uncharged Misconduct Evidence § 8:24 (1984). Nevertheless, for several reasons we find reversal of appellant’s conviction is not required by admission of this potentially inflammatory uncharged-misconduct evidence. United States v. Mann, 26 MJ at 5. Cf. United States v. Kinman, 25 MJ 99 (CMA 1987). Although not decisive, we must note that appellant did not object at the actual trial to [I]’s testimony about the sodomies on the basis that it exceeded the scope of trial counsel’s earlier concession. In addition, he did not object to her testimony on the assault of [AA] on the basis that it violated the trial judge’s earlier ruling barring [AA]’s testimony concerning this same incident. Finally, although he cited Mil.R.Evid." }, { "docid": "18681772", "title": "", "text": "851(b), and RCM 801(a)(4), Manual for Courts-Martial, United States, 1984, to rule on these objections. In this light, we note that there was no provision in appellant’s pretrial agreement concerning “judicial modification of the [agreed] stipulation” of fact (cf. United States v. DeYoung, supra at 80-81) or admissibility of this stipulation. See United States v. Glazier, 26 MJ 268, 270 (CMA 1988). Inexplicably, the parties to this trial acted as if there were such provisions in the agreement. In any event, judicial modification of the stipulation was possible and, accordingly, appellant’s objections to the stipulation must be particularly entertained. See United States v. Glazier, supra; cf. United States v. DeYoung, supra. Appellant’s first objection to this stipulation was that it contained admissions to acts of uncharged misconduct, evidence of which was inadmissible under Mil.R.Evid. 404(b), Manual, supra. Indeed, the stipulation did contain assertions of facts which constitute uncharged sexual misconduct and from which an inference could be drawn that appellant was a sexual degenerate. However, appellant pleaded guilty in this case. These admissions and the inferences drawn thereon were not offered to show he did the charged offenses but to assist the members in determining an appropriate sentence for his crimes. Accordingly, the concerns of Mil.R.Evid. 404(b) were not implicated in this case. United States v. Wingart, '27 MJ 128, 135-36 (CMA 1988). See United States v. Martin, 20 MJ 227, 229 n.3 (CMA 1985) (opinion of Cox, J.), cert. denied, 479 U.S. 917, 107 S.Ct. 323, 93 L.Ed.2d 295 (1986). Appellant next contended that the uncharged misconduct was not properly a matter in aggravation under RCM 1001. See United States v. Wingart, supra at 136. RCM 1001(b)(4) provides: Evidence in aggravation. The trial counsel may present evidence as to any aggravating circumstances directly relating to or resulting from the offenses of which the accused has been found guilty. Except in capital cases a written or oral deposition taken in accordance with R.C.M. 702 is admissible in aggravation. Discussion Evidence in aggravation may include evidence of financial, social, psychological, and medical impact on or cost to any person or entity" }, { "docid": "21759739", "title": "", "text": "appellant absolutely disputed the occurrence of the acts themselves. In substance, he defended against the charges by asserting, quite simply, that none of the acts ever occurred. Under these circumstances, the only possible purpose of the evidence of prior acts that was used here would be to suggest: “He did it before, so you can believe the prosecutrix when she says that he did it again.” Yet, that is precisely the purpose to which such evidence may not be put. Mil. R.Evid. 404(b) begins unambiguously: “Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith.” Accord Mil.R.Evid. 404(a). “The principle at work is that specific acts may not be used to prove the kind of person someone is in order to show how he probably acted on a particular occasion.” Saltzburg, supra at 361. As the majority opinion points out, the stated prosecutorial purpose of the evidence was “to prove a common scheme or plan” — specifically, “to sexually abuse his daughters at a young age.” At 360 and 363. See United States v. Hicks, 24 MJ 3 (CMA), cert. denied, 484 U.S. 827, 108 S.Ct. 95, 98 L.Ed.2d 55 (1987). Embracing this theory, the majority finds that “[t]he common factors were the age of the victim, the situs of the offenses, the circumstances surrounding their commission, and the fondling nature of the misconduct.” At 363. In Mann I expressed my views that prior sexual acts with a sibling of the prosecutrix that had occurred 5 years earlier “were too remote in time and place to sustain the Government’s theory of admissibility— namely, that they evidence a common scheme or plan.” 26 MJ at 6 (Everett, C.J., concurring in part and dissenting in part). Of course, here, where the alleged prior acts had occurred 15 years before those charged — and, indeed, prior even to the birth of the prosecutrix — I perceive no relevance at all in such prior-acts evidence to prove a common scheme or plan. See also United States" }, { "docid": "18956200", "title": "", "text": "in these circumstances. See United States v. Mann, supra; see generally Old Chief, supra at 190, 117 S.Ct. 644 (admission of prior-crimes evidence to provide coherent “narrative” does not constitute an abuse of discretion under Fed.R.Evid. 403). Finally, even if the challenged pictorial evidence was not highly probative, we conclude that its admission and display to members did not unduly prejudice appellant. See United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984). He was charged with two sexual offenses involving force and a lack of consent on the part of his alleged victim. Yet, despite the coercive homosexual acts portrayed in some of the challenged materials, he was found not guilty of these charges. Cf. Shymanovitz, supra at 1161 (“highly likely” accused found guilty on basis of “highly inflammatory” evidence). In addition, although appellant was found guilty of two sexual offenses not requiring force or a lack of consent, he did not actively dispute the prosecution’s overwhelming proof of his participation in these lesser offenses. Here, there was eyewitness testimony concerning appellant’s acts from the other soldier involved; DNA evidence of the alleged victim’s semen on appellant’s shirt; and his own pretrial statement effectively acknowledging his physical attraction to the other soldier. See also United States v. LaChapelle, 969 F.2d 632, 638 (8th Cir.1992). In these circumstances, and in view of the judge’s repeated limiting instructions, we conclude that appellant’s claim of unfair prejudice from these sexually explicit materials is not persuasive. Orsbum, 31 MJ at 188; see also Simpson, 152 F.3d at 1249 (nature of charges themselves brings some risk of offending average juror but careful judicial attention can prevent undue prejudice); United States v. Reynolds, 29 MJ 105, 110 (CMA 1989) (unfair-prejudice ruling upheld concerning uncharged sexual misconduct admitted under Mil.R.Evid. 404(b)). The decision of the United States Army Court of Criminal Appeals is affirmed. . Consent is not an element of a sodomy offense in violation of Article 125. See para. 51e, Part IV, Manual for Courts-Martial, United States (1994 edition). Lack of consent, however, does authorize a more severe punishment. Note" }, { "docid": "11289874", "title": "", "text": "before us. There, as here, the accused was charged with committing indecent acts and sodomy on his minor daughter; there, as here, the accused, in part, denied the acts had occurred at all; there, as here, the challenged evidence in part consisted of books depicting pornographic sexual acts between adults and children. “Consequently,” there, as here, “appellant’s sexual interests with regard to young girls ... was a material issue for the members to resolve. Mil.R.Evid. 404(b), 1984 Manual, supra.” 26 MJ at 3. As this Court noted: The first question for the military judge was whether the challenged pictorial evidence was relevant to show that appellant had this sexual desire during the charged acts. See Mil.R.Evid. 401. In other words, could these photographs be naturally interpreted as reflecting a passion on his part at that time towards young girls____ See generally 2 Wig-more, Evidence § 399(b) and (c) (Chadbourn rev.1979). 26 MJ at 3. We concluded there — and we conclude here — that the accused’s books which were found at the crime scene and indicate a unique sexual interest precisely like that reflected in the charged acts “could reasonably be viewed as reflecting or tending to reflect his sexual desires during the charged acts.” Id. at 4. Similarly, in United States v. Orsburn, 31 MJ 182 (CMA 1990), cert. denied, — U.S. -, 111 S.Ct. 1074, 112 L.Ed.2d 1179 (1991), we upheld admissibility where the accused had denied the claimed acts with his minor daughter that led to charges of rape, sodomy, and committing indecent acts; in our view, the military judge had a sufficient basis to conclude that books that were discovered in the closet of the accused’s bedroom where the alleged acts occurred and that explicitly depicted sex with children or young girls “tended to show appellant had the requisite sexual desires” implicit in the lesser-included offenses of indecent assault and committing indecent acts on a child. (31 MJ at 187). The same reasoning leads us to conclude here that appellant’s books indicate his motive for the charged misconduct. See United States v. Watkins, 21 MJ 224," }, { "docid": "23126961", "title": "", "text": "of these witnesses and now on appeal seeks reversal of his conviction based upon the following two issues granted for review by this Court: I WHETHER THE MILITARY JUDGE ERRED IN ALLOWING ... [MG] TO TESTIFY THAT APPELLANT HAD COMMITTED SIMILAR ACTS OF SEXUAL MISCONDUCT WITH HER, IN VIOLATION OF RULE 404(b), MILITARY RULES OF EVIDENCE. II WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF THE APPELLANT BY AUTHORIZING THE TESTIMONY OF A PSYCHOLOGIST IN VIOLATION OF RULES 702 AND 403, MILITARY RULES OF EVIDENCE. Mil.R.Evid. 404(b), Manual for Courts-Martial, United States, 1984, like its Federal counterpart, has been the subject of much litigation. Indeed, enough litigation has been generated concerning these rules to justify a substantial survey of the cases and statutes dealing with uncharged misconduct. Professor Edward J. Imwinkelried, a leading commentator on evidence, has authored a book, Uncharged Misconduct Evidence (1984), which sorts out and collects numerous cases relating to the subject. We have also written often on various applications of the rule. See United States v. Ferguson, 28 MJ 104 (CMA 1989); United States v. Gamble, 27 MJ 298 (CMA 1988); S. Saltzburg, L. Schinasi, D. Schlueter, Military Rules of Evidence Manual (hereafter Saltzburg) 361-64, 369-79 (2d ed. 1986 & 1988 Supp.). The rule can best be summed up by stating that it is abundantly clear that evidence which is offered simply to prove that an accused is a bad person is not admissible. To be admissible, the evidence must have some independent relevance under Mil.R.Evid. 401 and 402. United States v. Ferguson, supra at 108. It must “make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Mil.R. Evid. 401. And, of course, “its probative value” must not be “substantially outweighed by the danger of unfair prejudice.” Mil.R.Evid. 403. Therefore, when we look to evidence of uncharged misconduct, we are testing its admissibility under at least three standards: 1. Does the evidence reasonably support a finding by the court members that appellant committed prior crimes," }, { "docid": "21759726", "title": "", "text": "abuse his daughters at a young age. Consequently, he averred that the subsequent sexual misconduct with [A], in testimonial dispute at this court-martial, also probably occurred as individual manifestations of that same plan. See United States v. Mann, 26 MJ at 4; United States v. Brannan, 18 MJ 181, 183 (CMA 1984). Appellant contends that the uncharged sexual misconduct evidence in this case did not show a “plan” but instead reflected “a generic description of familial sexual abuse.” He asserts that it was nothing more than a collection of disparate acts which were remote in time and dissimilar in nature and circumstance. Furthermore, he expands upon his objection at trial and now contends that [I]’s actual testimony also exceeded the scope of the Government’s initial proffer of evidence. This additional sexual-misconduct evidence, he asserts, reinforces the dissimilarity of the acts of uncharged misconduct to the charged offenses and rendered her testimony on these matters inadmissible. The core of appellant’s Mil.R.Evid. 404(b) argument is that the uncharged misconduct against [I] did not rationally reflect a plan on appellant’s part to sexually abuse his daughters. See generally United States v. Brannan, supra at 183-84 (CMA 1984). The military judge rejected this contention specifically, noting significant elements of concurrence between the uncharged acts and the charged acts which suggested a common plan. See generally 2 Wigmore, Evidence §§ 304, 357(3), and 360 (Chadbourn rev.1979). The common factors were the age of the victim, the situs of the offenses, the circumstances surrounding their commission, and the fondling nature of the misconduct. On this basis we hold that the military judge did not abuse his discretion in concluding that all the uncharged misconduct was “probative of a plan on appellant’s part to sexually abuse his children.” United States v. Mann, supra 26 MJ at 5. Cf. United States v. Fawbush, 900 F.2d 150, 151 (8th Cir.1990). See generally Mil.R.Evid. 401 and 402. We must also reject appellant’s particular claim of remoteness based on the occurrence of those acts at least 12 years earlier. See generally United States v. Cuch, 842 F.2d 1173, 1178 (10th Cir.1988)." }, { "docid": "1087012", "title": "", "text": "“or the more relaxed rules for sentencing.” United States v. Martin, 20 MJ 227, 230 n.5 (CMA 1985), cert. denied, 479 U.S. 917, 107 S.Ct. 323, 93 L.Ed.2d 295 (1986). Military judges “should be particularly sensitive to probative dangers which might arise from the admission of uncharged misconduct evidence during the sentence procedure which, though relevant or even admissible, would unduly arouse the members’ hostility or prejudice against an accused.” United States v. Boles, 11 MJ 195, 201 (CMA 1981). Our standard for review of admission of such evidence is whether the military judge clearly abused his discretion. United States v. Redmond, 21 MJ 319, 326(CMA), cert. denied, 476 U.S. 1105, 106 S.Ct. 1950, 90 L.Ed.2d 359 (1986); United States v. Martin, supra. In appellant’s case, we find that the military judge did err in approving admission of the challenged letter-of-reprimand evidence. Mil.R.Evid. 403. Its probative value as to his military character was significantly reduced because of its obvious reliability problems. In addition, it is difficult to imagine more damaging sentencing evidence to a soon-to-be sentenced thief than also branding him as a sexual deviant or molester of teenage girls. See United States v. Bono, 26 MJ at 242. Finally, defense counsel in his closing argument, at least impliedly, requested that the military judge give some limiting instructions to the members on the proper use of this evidence. The tepid nature of the military judge’s general instructional response neither provided sufficient protection to the appellant in these particular circumstances nor clearly delineated the proper use of this evidence. Mil.R.Evid. 105. Accordingly, we hold that the decision to admit this explosive evidence of sexual perversion in these circumstances was a clear abuse of discretion. See generally United States v. Mirandes-Gonzalez, 26 MJ 411, 414 (CMA 1988) (Sullivan, J., concurring in the result); United States v. Williams, 28 MJ 911, 914-15 (ACMR 1989). Our next concern is whether appellant waived this error by entering into a stipulation of fact that he received a letter of reprimand for indecent acts with one young girl rather than five. We first note that a stipulation" }, { "docid": "1101839", "title": "", "text": "courts, on whether the intent must be actually disputed before evidence of prior bad acts may be admitted by the Government to show intent. See cases cited in 2 Wigmore, Evidence §§ 307 and 360 (Chadbourn rev.1979). Fourth, the members could have partially disbelieved the victim and found that the acts of sexual intercourse or sodomy were not committed by appellant but that he did engage in other conduct more ambiguous in nature. Then intent would be a material issue in this case. See generally United States v. Beahm, 664 F.2d 414 (4th Cir.1981). Appellant in his final argument suggests this sex-book evidence was so “emotional” or “repulsive” that its admission even for a valid purpose under Mil.R.Evid. 404(b) was unduly prejudicial. Mil.R.Evid. 403. We note that the judge specifically ruled on this question, and his decision should not be lightly disregarded. See United States v. Abel, 469 U.S. 45, 54-55, 105 S.Ct. 465, 470-471, 83 L.Ed.2d 450 (1984). Moreover, he twice instructed the members that they could consider the challenged evidence only on lesser offenses to those charged, which are not the subject of this appeal. In addition, the judge twice instructed the members that they could not consider this evidence to show appellant was a bad man and probably did the charged offenses. In the absence of evidence to the contrary, we must presume the members did not consider this evidence at all with respect to the findings of guilty before us. See United States v. Ricketts, 1 MJ 78 (CMA 1975). Accordingly, reversal on the basis of Mil.R.Evid. 403 is not warranted. United States v. Owens, 21 MJ 117, 124 (CMA 1985). The decision of the United States Air Force Court of Military Review is affirmed. Judge COX concurs. . He was found guilty of raping his daughter on \"divers occasions between 10 August 1984 and 24 April 1985.\" . For example, appellant was found guilty of committing indecent acts under the original charges of rape and sodomy, in Additional Charges I and II. These charges, however, were dismissed on the basis of the statute of limitations;" }, { "docid": "21759727", "title": "", "text": "on appellant’s part to sexually abuse his daughters. See generally United States v. Brannan, supra at 183-84 (CMA 1984). The military judge rejected this contention specifically, noting significant elements of concurrence between the uncharged acts and the charged acts which suggested a common plan. See generally 2 Wigmore, Evidence §§ 304, 357(3), and 360 (Chadbourn rev.1979). The common factors were the age of the victim, the situs of the offenses, the circumstances surrounding their commission, and the fondling nature of the misconduct. On this basis we hold that the military judge did not abuse his discretion in concluding that all the uncharged misconduct was “probative of a plan on appellant’s part to sexually abuse his children.” United States v. Mann, supra 26 MJ at 5. Cf. United States v. Fawbush, 900 F.2d 150, 151 (8th Cir.1990). See generally Mil.R.Evid. 401 and 402. We must also reject appellant’s particular claim of remoteness based on the occurrence of those acts at least 12 years earlier. See generally United States v. Cuch, 842 F.2d 1173, 1178 (10th Cir.1988). In this case the object of appellant’s purported plan was the sexual abuse of his young daughters. Accordingly, the victim’s age at the time of the offenses was the critical concern, not the period of time between the misconduct and the charged offenses. United States v. Mann, supra; United States v. Hadley, 918 F.2d 848, 851 (9th Cir.1990). Moreover, this is not a case like United States v. Ferguson, 28 MJ 104 (CMA 1989), where the uncharged misconduct was offered for a purpose under Mil.R.Evid. 404(b) which was not a material issue in that case. See United States v. Estabrook, 774 F.2d 284, 287 (8th Cir.1985). United States v. Gustafson, 728 F.2d 1078, 1083 (8th Cir.), cert. denied, 469 U.S. 979, 105 S.Ct. 380, 83 L.Ed.2d 315 (1984). The critical issue here was the occurrence of the charged indecent acts, and evidence of appellant’s plan to do such acts was probative on this point. United States v. Mann, supra. See generally United States v. Beahm, 664 F.2d 414, 417 (4th Cir.1981). Accordingly, we find no" }, { "docid": "17141940", "title": "", "text": "is admissibility of the testimony of Private Tucker, Cliff Styles, and Tyrone Noble regarding appellant’s prior drug activities. See Mil.R.Evid. 404(b) and 403, Manual for Courts-Martial, United States, 1984. The testimony of these witnesses was essentially that appellant had engaged in at least ten other conspiratorial drug sales and uses within the year preceding the charged offenses. Trial counsel argued, inter alia, that this uncharged misconduct showed appellant’s specific intent, plan or scheme, and motive to join the charged conspiracy to distribute drugs. The military judge admitted the evidence for these reasons. We first must decide whether the uncharged-misconduct evidence in this case served a relevant purpose at appellant’s trial other than showing appellant’s guilt by reason of his bad character. Mil. R. Evid. 404(b). See United States v. Reynolds, 29 MJ 105, 109 (CMA 1989) (fact of consequence). Since appellant was charged with conspiracy between February 9 and 19, 1989, the prosecution was required to show that he then agreed, expressly or impliedly, with his fellow conspirators to commit a crime. See generally United States v. Matias, 25 MJ 356, 362 (CMA 1987), cert. denied, 485 U.S. 968, 108 S. Ct. 1242, 99 L.Ed.2d 441 (1988); United States v. French, 965 F.2d 67, 73 (6th Cir. 1992). See para. 5b(1), Part IV, Manual, supra. Moreover, it was also required to show that appellant agreed to commit the particular crime alleged to be the object of the conspiracy charged in this case, i.e., distribution of cocaine. Finally, we note that appellant broadly denied the government witnesses’ testimony that an agreement to distribute cocaine existed in February of 1989. The uncharged-misconduct evidence showed numerous incidents during the pre ceding year of the conspirators’ needing money or drugs and their response of getting together to buy drugs in D.C. Such repeated unlawful concerts of action circumstantially suggest a tacit agreement or understanding between these persons with respect to unlawfully acquiring drugs. Id. Moreover, existence of such an agreement as late as December 1988 was some evidence that a similar agreement existed between the same conspirators including appellant in February of 1989. Accordingly," }, { "docid": "21759730", "title": "", "text": "reprehensible than those acts or the uncharged acts of fondling. See United States v. Fortenberry, 860 F.2d 628, 632 (5th Cir.1988), cert. denied, — U.S. -, 111 S.Ct. 1333, 113 L.Ed.2d 265 (1991); cf. United States v. Brooks, 670 F. 2d 625, 628 (5th Cir.1982). A strong possibility of prejudice existed on this basis alone. See generally E. Imwinkelried, Uncharged Misconduct Evidence § 8:24 (1984). Nevertheless, for several reasons we find reversal of appellant’s conviction is not required by admission of this potentially inflammatory uncharged-misconduct evidence. United States v. Mann, 26 MJ at 5. Cf. United States v. Kinman, 25 MJ 99 (CMA 1987). Although not decisive, we must note that appellant did not object at the actual trial to [I]’s testimony about the sodomies on the basis that it exceeded the scope of trial counsel’s earlier concession. In addition, he did not object to her testimony on the assault of [AA] on the basis that it violated the trial judge’s earlier ruling barring [AA]’s testimony concerning this same incident. Finally, although he cited Mil.R.Evid. 403 in his earlier written motion objecting to [I]’s testimony, he did not clearly pursue this undue-prejudice objection at the time she actually presented her testimony to the judge or the members. His final oral objection to the sodomy evidence was predicated only on its dissimilarity to the charged actions of fondling such that it did not qualify for admission as evidence of a plan under Mil.R.Evid. 404(b). See United States v. Brannan, 18 MJ at 184. Such defense inaction is at best puzzling and suggests waiver of his Mil.R.Evid. 403 claim. See Mil.R.Evid. 103(a)(1). In any event, this failure to properly object to the additional testimony of [I] reflects recognition of the fact that continuation of this objection, once the uncharged fondling evidence was admitted, was clearly superfluous. The victim’s (A’s) testimony was already substantially corroborated by the showing of appellant’s sex-abuse plan through the evidence of his repeated fondling of [I]. Admission of evidence of additional sexual misconduct of a more serious degree with [I] for this same purpose was simple overkill. Cf." }, { "docid": "17141945", "title": "", "text": "previous drug transactions and use was far outweighed by its danger of unfair prejudice to him. See Mil.R.Evid. 403. While the challenged testimony was prejudicial to appellant’s case, the above rule only precludes admission of evidence which is “unduly” prejudicial to the defense. United States v. Owens, 21 MJ 117, 124 (CMA 1985). Moreover, we will not disturb the military judge’s determination on this question absent a clear abuse of discretion on his part. United States v. Cuellar, 27 MJ 50, 54 (CMA 1988), cert. denied, 493 U.S. 811, 110 S.Ct. 54, 107 L.Ed.2d 23 (1989); see United States v. Mukes, 18 MJ at 359 (CMA 1984). In the present case, numerous incidents of uncharged drug misconduct were presented by the Government. However, this evidence was admitted for specific and limited purposes to shore weaknesses in the prosecution’s case occasioned by appellant’s broad testimonial denials. United States v. Silvis, 33 MJ 135, 137 (CMA 1991) . These evidentiary purposes were not directly related to appellant’s character but concerned other relevant circumstantial facts which showed his guilt of the charged offenses. United States v. Owens, supra. Moreover, the judge twice gave appropriate limiting instructions on the permissible uses of this evidence. See United States v. Orsburn, 31 MJ 182, 188 (CMA 1990), cert. denied, — U.S.-, 111 S.Ct. 1074, 112 L.Ed.2d 1179 (1991). Accordingly, we find no prejudicial error occurred in this case. See United States v. Jones, 32 MJ 155 (CMA 1991). See generally United States v. Washington, 969 F.2d 1073 (D.C.Cir. 1992) . II The second granted issue asks “whether appellant was denied a fair trial” because two members of his court-martial “failed to disclose” certain information in response to the military judge’s voir dire. See generally Smith v. Phillips, 455 U.S. 209, 215-18, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). First, appellant contends that this nondisclosure permitted those members to sit on his court-martial although a substantial doubt now exists as to their overall impartiality. See RCM 912(f)(l)(N), Manual, supra. This doubt, he asserts, arises because such nondisclosure suggests these members may have deliberately disregarded the judge’s voir" }, { "docid": "1101837", "title": "", "text": "basis for the judge to find the challenged evidence tended to show appellant had the requisite sexual desires for conviction of the lesser-included offenses. United States v. Mann, supra. See Simon v. State, 743 S.W.2d 318, 324 (Tex. App.—Houston [1st Dist.] 1987); State v. Fletcher, 174 Kan. 530, 256 P.2d 847, 848-49 (1953); People v. Herman, 97 Cal.App.2d 272, 217 P.2d 440 (2 Dist.1950). Nevertheless, appellant asserts that, because of the unambiguous nature of the charged acts, his intent at the time of their commission was never a real or material issue in this case. In other words, if he engaged in sexual intercourse or sodomy with his daughter as alleged, there would be no question of his intent in doing these acts. See People v. Hansen, 708 P.2d 468, 471 (Colo.App.1985); People v. Kelley, 66 Cal.2d 232, 57 Cal.Rptr. 363, 372, 424 P.2d 947, 956 (1967). See generally People v. McDonald, 542 N.Y.S.2d 42, 150 A.D.2d 805 (2d Dept.1989). Therefore, he suggests that admission of the challenged evidence in the Government’s case in chief or at any time for this purpose was a sham and not authorized by Mil.R.Evid. 404(b). See generally United States v. Reynolds, 29 MJ 105, 110 (CMA 1989); United States v. Cuellar, 27 MJ 50 (CMA 1988), cert. denied, — U.S. -, 110 S.Ct. 54, 107 L.Ed.2d 23 (1989). We disagree with this argument in the present case for several reasons. First, we note that the military judge initially stated that he would not rule on admissibility of the books until both sides presented their cases. However, it was defense counsel who insisted that the judge rule at the close of the prosecution’s case. United States v. White, 25 MJ 50, 52 (CMA 1987). Second, defense counsel refused to commit himself at that time on the issue of intent or provide any assurances to the judge that he would not dispute that issue. See United States v. Webb, 625 F.2d 709, 710 (5th Cir.1980). Third, there is a legitimate disagreement not only in the various United States Courts of Appeals, but also in the state" }, { "docid": "21759728", "title": "", "text": "In this case the object of appellant’s purported plan was the sexual abuse of his young daughters. Accordingly, the victim’s age at the time of the offenses was the critical concern, not the period of time between the misconduct and the charged offenses. United States v. Mann, supra; United States v. Hadley, 918 F.2d 848, 851 (9th Cir.1990). Moreover, this is not a case like United States v. Ferguson, 28 MJ 104 (CMA 1989), where the uncharged misconduct was offered for a purpose under Mil.R.Evid. 404(b) which was not a material issue in that case. See United States v. Estabrook, 774 F.2d 284, 287 (8th Cir.1985). United States v. Gustafson, 728 F.2d 1078, 1083 (8th Cir.), cert. denied, 469 U.S. 979, 105 S.Ct. 380, 83 L.Ed.2d 315 (1984). The critical issue here was the occurrence of the charged indecent acts, and evidence of appellant’s plan to do such acts was probative on this point. United States v. Mann, supra. See generally United States v. Beahm, 664 F.2d 414, 417 (4th Cir.1981). Accordingly, we find no legal error in the military judge’s ruling under Mil.R.Evid. 404(b). See United States v. Orsburn, 31 MJ 182, 187 (CMA 1990). See generally Story v. Collins, 920 F.2d 1247, 1254 (5th Cir.1991). The more difficult problem in this case arises under the second granted issue. It stems particularly from the portion of [I]’s testimony concerning the more serious acts of sexual misconduct perpetrated upon her by appellant. She testified that her father orally and anally sodomized her on several occasions and attempted to sexually assault her sister, [AA], when they lived at Fort Riley. We note that trial counsel had earlier conceded that [I]’s testimony on the sodomies would not be adduced by the Government because of its potential for prejudice. Moreover, the judge ruled that testimony by [AA] concerning appellant’s one-time attempt to sexually assault her would also not be admissible at this court-martial. Admissibility of this testimony under Mil.R.Evid. 403 was highly questionable. Appellant was only charged with fondling his minor daughter. The uncharged acts of sodomy were clearly more egregious and more" }, { "docid": "21759725", "title": "", "text": "eventually worked down to my underwear, but it would be over my underwear. Q. When did you first tell anybody that this had happened? A. When we lived in Fort Riley, Kansas where he had made an attempt on my younger sister, [AA], and I believe it was that night that I told my older sister, [D], that he had also done this to me and not just one time. Our starting point in resolving the first granted issue is Mil.R.Evid. 404(b), Manual for Courts-Martial, United States, 1984. It states: (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. (Emphasis added.) The prosecutor’s theory of admissibility for appellant’s uncharged misconduct with [I] and [AA] was that it showed a plan on his part to sexually abuse his daughters at a young age. Consequently, he averred that the subsequent sexual misconduct with [A], in testimonial dispute at this court-martial, also probably occurred as individual manifestations of that same plan. See United States v. Mann, 26 MJ at 4; United States v. Brannan, 18 MJ 181, 183 (CMA 1984). Appellant contends that the uncharged sexual misconduct evidence in this case did not show a “plan” but instead reflected “a generic description of familial sexual abuse.” He asserts that it was nothing more than a collection of disparate acts which were remote in time and dissimilar in nature and circumstance. Furthermore, he expands upon his objection at trial and now contends that [I]’s actual testimony also exceeded the scope of the Government’s initial proffer of evidence. This additional sexual-misconduct evidence, he asserts, reinforces the dissimilarity of the acts of uncharged misconduct to the charged offenses and rendered her testimony on these matters inadmissible. The core of appellant’s Mil.R.Evid. 404(b) argument is that the uncharged misconduct against [I] did not rationally reflect a plan" }, { "docid": "18956201", "title": "", "text": "concerning appellant’s acts from the other soldier involved; DNA evidence of the alleged victim’s semen on appellant’s shirt; and his own pretrial statement effectively acknowledging his physical attraction to the other soldier. See also United States v. LaChapelle, 969 F.2d 632, 638 (8th Cir.1992). In these circumstances, and in view of the judge’s repeated limiting instructions, we conclude that appellant’s claim of unfair prejudice from these sexually explicit materials is not persuasive. Orsbum, 31 MJ at 188; see also Simpson, 152 F.3d at 1249 (nature of charges themselves brings some risk of offending average juror but careful judicial attention can prevent undue prejudice); United States v. Reynolds, 29 MJ 105, 110 (CMA 1989) (unfair-prejudice ruling upheld concerning uncharged sexual misconduct admitted under Mil.R.Evid. 404(b)). The decision of the United States Army Court of Criminal Appeals is affirmed. . Consent is not an element of a sodomy offense in violation of Article 125. See para. 51e, Part IV, Manual for Courts-Martial, United States (1994 edition). Lack of consent, however, does authorize a more severe punishment. Note that the maximum punishment for forcible sodomy was substantially increased effective December 9, 1994, see Manual, supra (1998 edition) at A2524, which was after this offense was committed. . All Manual provisions are cited to the version applicable at trial. The 1998 version is unchanged, unless otherwise indicated. . This evidence was not admitted as general character evidence. Cf. United. States v. Gagan, 43 MJ 200, 203 (1995) (use of past sexual behavior as character evidence). EFFRON, Judge (concurring in part and in the result): To the extent that the majority opinion relies upon the admission into evidence of material that logically relates to the specific aspects of this case (e.g., suggesting sexual abuse of the superior-subordinate relationship or coercive sexual conduct in a military-type environment), I concur. The remaining materials at issue, which relate to the general sexual interests of appellant, are of questionable relevance under Mil.R.Evid. 401 and 402 under the circumstances of this case. I concur on the grounds that admission of such material in this case was harmless under Mil.R.Evid. 401^403," }, { "docid": "12136639", "title": "", "text": "drug abuser. See also Mil.R.Evid. 404(b). We agree. See also United States v. Betts, 16 F.3d at 759 (“poorly disguised propensity argument” prohibited by Fed.R.Evid. 404(b)). 15. In resolving this Mil.R.Evid. 403 question, we first note that our decision in United States v. Ray, 26 MJ at 471, involved a trial by judge alone, who, we presumed, would not be confused by the limited use allowed of this evidence or would not use it unfairly. Appellant’s trial, however, was by members; accordingly, the same presumption is not applicable. E.g., United States v. Deninno, 29 F.3d 572, 577 (10th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1117, 130 L.Ed.2d 1081 (1995); United States v. Johnson, 28 F.3d at 1499. Second, the challenged evidence of sinusitis had limited value to show prior heavy drug use which was further diminished by the fact that Doctor Sweet did not personally examine appellant. See generally United States v. Holmes, 39 MJ at 180-81. 16. On the other hand, the sinusitis evidence, coupled with Doctor Sweet’s testimony on chronic cocaine abuse, obviously had great potential for prejudicing appellant in his trial for use of cocaine. See also United States v. Huels, 31 F.3d 476, 479 (7th Cir. 1994). Moreover, the military judge failed to instruct the members that the particular use of this evidence was limited to rebutting the defense of innocent ingestion. See United States v. Abel, 469 U.S. 45, 52-53, 105 S.Ct. 465, 469-70, 83 L.Ed.2d 450 (1984); see also United States v. Betts, supra. Finally, the military judge did not give a cautionary instruction to members that they could not use the challenged evidence to show appellant did the charged act. See also United States v. Cousins, 35 MJ 70, 74 (CMA 1992). In these circumstances, we conclude that the judge abused his discretion in concluding that admission of this minimally probative evidence was permitted by Mil.R.Evid. 403. See Government of the Virgin Islands v. Archibald, 987 F.2d 180, 186-87 (3d Cir. 1993); United States v. Doe, 903 F.2d 16, 21-23 (D.C.Cir.1990). 17. Despite this conclusion, we are nonetheless convinced that admission" }, { "docid": "11289875", "title": "", "text": "indicate a unique sexual interest precisely like that reflected in the charged acts “could reasonably be viewed as reflecting or tending to reflect his sexual desires during the charged acts.” Id. at 4. Similarly, in United States v. Orsburn, 31 MJ 182 (CMA 1990), cert. denied, — U.S. -, 111 S.Ct. 1074, 112 L.Ed.2d 1179 (1991), we upheld admissibility where the accused had denied the claimed acts with his minor daughter that led to charges of rape, sodomy, and committing indecent acts; in our view, the military judge had a sufficient basis to conclude that books that were discovered in the closet of the accused’s bedroom where the alleged acts occurred and that explicitly depicted sex with children or young girls “tended to show appellant had the requisite sexual desires” implicit in the lesser-included offenses of indecent assault and committing indecent acts on a child. (31 MJ at 187). The same reasoning leads us to conclude here that appellant’s books indicate his motive for the charged misconduct. See United States v. Watkins, 21 MJ 224, 227 (CMA), cert. denied, 476 U.S. 1108, 106 S.Ct.1956, 90 L.Ed.2d 364 (1986). Appellant gets no relief by relying on Mil.R.Evid. 403. The military judge expressly considered whether the books offered a greater risk of unfair prejudice to appellant than they offered as probative value to the prosecution. His reasoning was logical; we shall not disturb it under circumstances where the evidence was so carefully handled both by the military judge and by the prosecution. See United States v. Orsburn and United States v. Mann, both supra. III Appellant’s next allegation of trial error concerns testimony of Major Nancy Slicner, a clinical psychologist who was accepted as an expert “with specialized knowledge” in the field of sexual offenders and sexual abuse victims. In the part relevant to this issue, Slicner testified concerning the concept of parental duress in cases of incest. Essentially, appellant’s trial objection was “that her testimony is without adequate scientific foundation under M[il]RE[vid.] 702, and lacks any relevance to any issue in the Government’s case-in-chief under M[il]RE[vid.] 401 and 402.” In response" }, { "docid": "1101838", "title": "", "text": "or at any time for this purpose was a sham and not authorized by Mil.R.Evid. 404(b). See generally United States v. Reynolds, 29 MJ 105, 110 (CMA 1989); United States v. Cuellar, 27 MJ 50 (CMA 1988), cert. denied, — U.S. -, 110 S.Ct. 54, 107 L.Ed.2d 23 (1989). We disagree with this argument in the present case for several reasons. First, we note that the military judge initially stated that he would not rule on admissibility of the books until both sides presented their cases. However, it was defense counsel who insisted that the judge rule at the close of the prosecution’s case. United States v. White, 25 MJ 50, 52 (CMA 1987). Second, defense counsel refused to commit himself at that time on the issue of intent or provide any assurances to the judge that he would not dispute that issue. See United States v. Webb, 625 F.2d 709, 710 (5th Cir.1980). Third, there is a legitimate disagreement not only in the various United States Courts of Appeals, but also in the state courts, on whether the intent must be actually disputed before evidence of prior bad acts may be admitted by the Government to show intent. See cases cited in 2 Wigmore, Evidence §§ 307 and 360 (Chadbourn rev.1979). Fourth, the members could have partially disbelieved the victim and found that the acts of sexual intercourse or sodomy were not committed by appellant but that he did engage in other conduct more ambiguous in nature. Then intent would be a material issue in this case. See generally United States v. Beahm, 664 F.2d 414 (4th Cir.1981). Appellant in his final argument suggests this sex-book evidence was so “emotional” or “repulsive” that its admission even for a valid purpose under Mil.R.Evid. 404(b) was unduly prejudicial. Mil.R.Evid. 403. We note that the judge specifically ruled on this question, and his decision should not be lightly disregarded. See United States v. Abel, 469 U.S. 45, 54-55, 105 S.Ct. 465, 470-471, 83 L.Ed.2d 450 (1984). Moreover, he twice instructed the members that they could consider the challenged evidence only on lesser" } ]

[ { "docid": "22419949", "title": "", "text": "by law. Bennett, 892 F.2d at 823; Hall v. Perry (In re Cochise College Park, Inc.), 703 F.2d 1339, 1357 (9th Cir.1983). The trustee has a duty to preserve assets of the estate while exercising the care and diligence of an ordinarily prudent person under similar circumstances. Bennett, 892 F.2d at 823 (citing, United States, ex rel. Block v. Aldrich (In re Rigden), 795 F.2d 727, 730 (9th Cir.1986)). Although there appears to be a conflict between the concept of judicial immunity and the ability to sue the trustee, the courts have established certain standards and instructions whereby the trustees can protect themselves by complying with these standards and, thus, gain judicial immunity. Those instructions include: the trustee should give notice to the debtor and obtain prior court approval of the proposed act; the disclosure by the trustee to the court in furtherance of the requested approval must be candid; and the act must be within the trustee’s official duties. Bennett, 892 F.2d at 823 (citing Mosser v. Darrow, 341 U.S. 267, 274, 71 S.Ct. 680, 683, 95 L.Ed. 927 (1951); Mullis, 828 F.2d at 1390-91; Cochise, 703 F.2d at 1357 n. 25). Courts have long held that the nonappointing court may not entertain suits against the trustee for acts done in the trustee’s official capacity without leave from the appointing court because the other court lacks subject matter jurisdiction. See Barton v. Barbour, 104 U.S. 126, 136-37, 26 L.Ed. 672 (1881); Leonard v. Vrooman, 383 F.2d 556, 560 (9th Cir.1967), cert. denied, 390 U.S. 925, 88 S.Ct. 856, 19 L.Ed.2d 985 (1968); Jacksen, 105 B.R. at 545; Balboa Improvements, 99 B.R. at 970; Campbell, 13 B.R. at 976. This Panel may consider the analyses of various courts interpreting the prior bankruptcy law before the enactment of the Bankruptcy Code, since Congress has not enacted any provision in the Bankruptcy Code which evidences an intent to overrule or vitiate such long-standing authority. Dewsnup v. Timm, 502 U.S. 410, 419-20, 112 S.Ct. 773, 779, 116 L.Ed.2d 903 (1992). A limited exception to the longstanding rule that approval of the appointing court" } ]

[ { "docid": "5481680", "title": "", "text": "2168, 189 L.Ed.2d 83 (2014). We are not called upon in this case to provide all the details regarding how a party should, post -Stem, proceed under Barton. We hold only that a party must continue to file with the relevant bankruptcy court for permission to proceed with a claim against the trustee. If a bankruptcy court concludes that the claim against a trustee is one that the court would not itself be able to resolve under Stem, that court can make the initial decision on the procedure to follow. Once a bankruptcy-court makes such a determination, this court can review the utilized procedure. II. Whether Barton is inapplicable when a party brings suit in the court with supervisory authority over the bankruptcy court. The plaintiffs also argue that the Barton doctrine does not apply when a party brings suit in the court that exercises supervisory authority over the bankruptcy court that appointed the trustee. The only authority the plaintiffs cite for this argument is In re Harris, 590 F.3d 730 (9th Cir.2009). There, the Ninth Circuit held that the Barton doctrine does not apply when a case against a trustee is removed from state court to the appointing bankruptcy court. See id. at 742. The court reasoned that the appointing court could not invoke Barton because the doctrine “denies subject matter jurisdiction to all forums except the appointing court.” Id. Nothing in the opinion suggests that “appointing court” should be construed to include the court with supervisory authority over the appointing court. In fact, the Ninth Circuit Bankruptcy Appellate Panel explicitly rejected this interpretation in an earlier opinion. See In re Kashani 190 B.R. 875, 885 (9th Cir.BAP1995). The Ninth Circuit has cited Kashani favorably without suggesting it overrules or limits Harris. See In re Crown Vantage, Inc., 421 F.3d 963, 970 (9th Cir.2005); In re Castillo, 297 F.3d 940, 946 (9th Cir.2002). Additionally, every other circuit to address the issue has maintained the distinction between the bankruptcy court and the district court, holding that “a debtor must obtain leave of the bankruptcy court before initiating an action in" }, { "docid": "5250652", "title": "", "text": "and validity of the trustee’s sale of the probate asset to Shain. In Barton v. Barbour, 104 U.S. 126, 127, 26 L.Ed. 672 (1881), the Supreme Court held that suit cannot be brought against a receiver for his official actions without first obtaining leave of the court in which he was appointed. In Carter v. Rodgers, 220 F.3d 1249, 1253 (11th Cir.2000), our court of appeals, following an “unbroken line of cases” that extended the Barton doctrine to trustees or other court appointed or approved professionals being sued for acts performed in their official capacities. The court explained the policy behind requiring a litigant to obtain leave of the bankruptcy court before initiating an action against a bankruptcy trustee: If [the trustee] is burdened with having to defend against suits by litigants disappointed by his actions on the court’s behalf, his work for the court will be impeded .... Without the requirement [of leave], trusteeship will become a more irksome duty, and so it will be harder for courts to find competent people to appoint as trustees. Trustees will have to pay higher malpractice premiums, and this will make the administration of the bankruptcy laws more expensive .... Furthermore, requiring that leave to sue be sought enables the bankruptcy judges to monitor the work of the trustees more effectively. Carter, 220 F.3d at 1252-53, quoting In re Linton, 136 F.3d 544, 545 (7th Cir.1998). Thus, Carter squarely holds that a litigant must first obtain leave from the bankruptcy court before suing a trustee (or her court-appointed counsel) on account of their official acts. Id. at 1253. “Consent of the appointing bankruptcy court is required even when the plaintiff seeks to sue in another federal court.” In re Krikava, 217 B.R. 275, 279 (Bankr.D.Neb.1998). Indeed, consent is required even when the bankruptcy case is closed. Linton, 136 F.3d at 545. Section 959(a) of Title 28, United States Code, provides a limited “carrying on business” exception to the Barton doctrine. This exception permits suits against “[t]rustees, receivers or managers of any property, without leave of the court appointing them, with respect to" }, { "docid": "21021072", "title": "", "text": "bankruptcy court before it can initiate an action in the district court when that action is against the trustee or other bankruptcy-court-appointed officer, for acts done in the actor’s official capacity. Joining the other circuits that have considered this issue, we hold that a debtor must obtain leave of the bankruptcy court before initiating an action in district court when that action is against the trustee or other bankruptcy-court-appointed officer, for acts done in the actor’s official capacity. See Springer v. Infinity Group Co., No. 98-5182, 189 F.3d 478 (10th Cir. Aug.26, 1999) (unpublished table decision), cert. denied, — U.S. —, 120 S.Ct. 1422, 146 L.Ed.2d 314 (2000); Gordon v. Nick, No. 96-1858, 162 F.3d 1155 (4th Cir. Sept.2, 1998) (unpublished table decision); In re Linton, 136 F.3d 544, 546 (7th Cir.1998); Lebovits v. Scheffel (In re Lehal Realty Assocs.), 101 F.3d 272 (2d Cir.1996); Allard v. Weitzman (In re DeLore-an Motor Co.), 991 F.2d 1236, 1240 (6th Cir.1993); Vass v. Conron Bros. Co., 59 F.2d 969, 970 (2d Cir.1932); Kashani v. Fulton (In re Kashani), 190 B.R. 875, 885 (9th Cir. BAP 1995). “An unbroken line of cases ... has imposed [this] requirement as a matter of federal common law.” Linton, 136 F.3d at 545. In so holding, these circuit courts have applied the rule referred to as the “Barton doctrine.” See id. The Supreme Court in Barton v. Barbour, 104 U.S. 126, 127, 26 L.Ed. 672 (1881), stated that “[i]t is a general rule that before suit is brought against a receiver[,] leave of the court by which he was appointed must be obtained.” Barton involved a receiver in state court, but the circuit courts have extended the Barton doctrine to lawsuits against a bankruptcy trustee. In Linton, the Seventh Circuit explained the reasons behind its application of the Barton doctrine to a bankruptcy trustee, as follows: “The trustee in bankruptcy is a statutory successor to the equity receiver, and ... [j]ust like an equity receiver, a trustee in bankruptcy is working in effect for the court that appointed or approved him, administering property that has come under" }, { "docid": "8655722", "title": "", "text": "to establish that Barbee willfully and deliberately attempted to harm Price Waterhouse by destroying the boxes of documents. In order to hold Barbee personally liable for his conduct, Price Waterhouse would need to demonstrate he deliberately caused harm to it. E.g. Sherr, 552 F.2d 1367; College Park, 703 F.2d 1339. Bar-bee destroyed the documents only after determining they were duplicative and of inconsequential value. Because there are no allegations suggesting Barbee deliberately destroyed the documents to harm Price Waterhouse, personal liability is unwarranted. Even if Price Waterhouse could establish a prima facie case against Barbee, demonstrating he did act beyond his powers as Trustee, leave must be granted by the Bankruptcy Court to proceed with any action against Barbee. Carter v. Rodgers, 220 F.3d 1249 (11th Cir.2000) (debtor was required to obtain leave of the bankruptcy court to institute action against the trustee for acts done in the actor’s official capacity). As the Eleventh Circuit noted in Carter, “ ‘[a]n unbroken line of cases ... has imposed [this] requirement as a matter of federal common law.’” Carter, 220 F.3d at 1252 citing In re Linton, 136 F.3d 544, 545 (7th Cir.1998). In so holding, the Eleventh Circuit recognized that these courts have applied the rule referred to as the “Barton Doctrine,” derived from the Supreme Court’s decision in Barton v. Barbour, 104 U.S. 126, 26 L.Ed. 672 (1881). Carter, 220 F.3d at 1252. In Barton, the Supreme Court stated that “[i]t is a general rule that before suit is brought against a reeeiver[,] leave of court by which he was appointed must be obtained.” 104 U.S. at 127. Through the years,' the courts have extended the Barton Doctrine to actions against a bankruptcy trustee. The Eleventh Circuit agreed with the reasoning behind the expanded application of the Barton Doctrine as succinctly stated by the Seventh Circuit in Linton: “The trustee in bankruptcy is a statutory suc cessor to the equity receiver, and ... [j]ust like an equity receiver, a trustee in bankruptcy is working in effect for the court that appointed or approved him, administering property that has come under" }, { "docid": "5481681", "title": "", "text": "Ninth Circuit held that the Barton doctrine does not apply when a case against a trustee is removed from state court to the appointing bankruptcy court. See id. at 742. The court reasoned that the appointing court could not invoke Barton because the doctrine “denies subject matter jurisdiction to all forums except the appointing court.” Id. Nothing in the opinion suggests that “appointing court” should be construed to include the court with supervisory authority over the appointing court. In fact, the Ninth Circuit Bankruptcy Appellate Panel explicitly rejected this interpretation in an earlier opinion. See In re Kashani 190 B.R. 875, 885 (9th Cir.BAP1995). The Ninth Circuit has cited Kashani favorably without suggesting it overrules or limits Harris. See In re Crown Vantage, Inc., 421 F.3d 963, 970 (9th Cir.2005); In re Castillo, 297 F.3d 940, 946 (9th Cir.2002). Additionally, every other circuit to address the issue has maintained the distinction between the bankruptcy court and the district court, holding that “a debtor must obtain leave of the bankruptcy court before initiating an action in district court when the action is against the trustee or other bankruptcy-court-appointed officer, for acts done in the actor’s official capacity.” Carter v. Rodgers, 220 F.3d 1249, 1252 (11th Cir.2000) (collecting cases). We reject the plaintiffs’ argument that Barton is satisfied by filing suit in the district court with supervisory authority over the bankruptcy court. AFFIRMED. . Section 1334(c) also provides that “nothing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11.\" . In Stem, the Court held that the Bankruptcy Act of 1984 violated the Constitution “in one isolated respect” by authorizing bankruptcy courts to decide claims against creditors for acts committed in their private capacities before the institution of bankruptcy proceedings. See id. at 2612, 2620. In this case, the plaintiffs’ claims relate to Schmidt’s actions in his representative capacity during the administration of" }, { "docid": "10724334", "title": "", "text": "route to assert and enforce a claim against the res would otherwise be an action against the receiver. See Barton, 104 U.S. at 134; Med. Dev. Int’l v. Cal. Dept. of Corr. & Rehab., 585 F.3d 1211, 1219 (9th Cir.2009). Another part of the justification for the defensive injunction was to ensure that the “appointing” court maintained its control over its receiver to the exclusion of other courts. See Fed. Sav. & Loan Ins. Corp. v. PSL Realty Co., 630 F.2d 515, 521 (7th Cir.1980). This receivership jurisdiction principle, along with giving recognition to the injunction against actions versus a receiver, was adopted for application in federal courts in Barton. See Barton, 104 U.S. at 136-37. When a receiver is acting within her official capacity, the Barton Doctrine (1) enforces the absence of jurisdiction of other, non-receiver courts over a res in the possession of an equity court, including a bankruptcy court, and (2) recognizes the receivership court’s need to shield its re ceiver from challenges by other courts to her actions while acting within her capacity as a receiver. See id. at 133-35; In re Crown Vantage, Inc., 421 F.3d 963, 971 (9th Cir.2005) (“The Barton doctrine applies in bankruptcy, because the trustee in bankruptcy is a statutory successor to the equity receiver, and just like the equity receiver, a trustee in bankruptcy is working in effect for the court that appointed or approved him, administering property that has come under the court’s control by virtue of the Bankruptcy Code.”) (quotations and citations omitted); Carter v. Rodgers, 220 F.3d 1249, 1252 (11th Cir.2000) (“we hold that a debtor must obtain leave of the bankruptcy court before initiating an action in district court when that action is against the trustee or other bankruptcy-court-appointed officer, for acts done in the actor’s official capacity.”); In re Linton, 136 F.3d 544, 546 (7th Cir.1998); Lebovits v. Scheffel (In re Lehal Realty Assocs.), 101 F.3d 272, 276 (2d Cir.1996); Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir.1993). As these cases demonstrate, Barton’s holding has been extended beyond receivers" }, { "docid": "20394786", "title": "", "text": "those at issue in Marathon.” Id. at 169. The First Circuit reasoned that the pre-petition “traditional” contract at issue in Marathon was distinguishable from a contract entered into post-petition with the bankruptcy trustee and made under the supervision of the bankruptcy court because the latter are not traditional contracts under state law Id. at 170. Rather, because the trustee is an officer of the court, and because the contract was approved by the bankruptcy court, such a post-petition contract is much more like a public rights case than a private rights case. Id. The First Circuit’s reasoning is equally applicable here. Harris’s contract claim is not a “traditional” contract action because the Settlement Agreement he claims was breached only came into being post-petition and was made with the trustee and Special Representative of the estate. Further, its terms directly related only to the administration of the bankruptcy estate. Harris’s claim is thus distinguishable from the suit at issue in Marathon, and there is no problem with a bankruptcy court exercising jurisdiction over it. Because there is no constitutional problem under Marathon, and because Harris’s contract suit more than “arguably” fits withm subsection (A), Castlerock does not apply and core proceeding jurisdiction existed under our holding in Harris Pine Mills. B. The district court erred when it dismissed Harris’s suit for lack of subject matter jurisdiction under the Barton doctrine. The district court erred when it affirmed the bankruptcy court’s dismissal of Harris’s suit for lack of subject matter jurisdiction under the Barton doctrine, because the Barton doctrine is not a ground to dismiss a suit that is proceeding in the appointing bankruptcy court. As applied in the Ninth Circuit, the Barton doctrine requires “that a party must first obtain leave of the bankruptcy court before it initiates an action in another forum against a bankruptcy trustee or other officer appointed by the bankruptcy court for acts done in the officer’s official capacity.” In re Crown Vantage, Inc., 421 F.3d 963, 970 (9th Cir.2005) (emphasis added). Without leave of the court that appointed the trustee (the “appointing court”), “the other forum" }, { "docid": "18193672", "title": "", "text": "not involve the question of whether an entity suing the trustee or receiver required leave of the appointing court before commencing such an action in a foreign jurisdiction. Id. at 547, 67 S.Ct. 451. There is no conflict between Morris and Barton. See, e.g., SEC v. United Financial Group, Inc., 576 F.2d 217, 221 n. 9 (9th Cir.1978) (distinguishing Barton from actions involving full faith and credit). Absent a final judgment, the Full Faith and Credit Clause has no application. Lynde v. Lynde, 181 U.S. 183, 187, 21 S.Ct. 555, 45 L.Ed. 810 (1901). The Fort James Entities do not have judgment upon which they seek recognition; they simply wish to race to obtain one. Barton precludes them from doing so without leave of court. Nor did Morris limit the Barton doctrine to suits not involving proofs of claims. Long after Morris was decided, we held without limitation that a trustee “is not subject to suit without leave of the appointing court for acts done in his official capacity and within his authority as an officer of the Court.” Leonard v. Vrooman, 383 F.2d 556, 560(9th Cir.1967). As we have noted, the BAP declined to draw such a distinction in Kashani More recently, we stated the Barton doctrine without any “proof of claim” qualifications, holding that: without leave of the bankruptcy court, no suit may be maintained against a trustee for actions taken in the administration of the estate. A court other than the appointing court has no jurisdiction to entertain an action against the trustee for acts within the trustee’s authority as an officer of the court without leave of the appointing court. Curry v. Castillo (In re Castillo), 297 F.3d 940, 945(9th Cir.2002). There are good policy reasons for rejecting the limitation urged by the Fort James Entities. If the Barton doctrine is limited, Barton will not protect trustees from suit unless the suit has the potential to affect the ratio of distribution. See, e.g., Muratore v. Darr, 375 F.3d 140 (1st Cir.2004) (noting other potential costs in such suits). As Judge Posner noted in Linton: Just like" }, { "docid": "11309270", "title": "", "text": "receiver’s hands.” Id. If allowed to proceed, “the court which appointed the receiver and was administering the trust assets would be impotent to restrain” such a plaintiff, complicating the proper administration of the estate. Id. Our sibling circuits have frequently applied this doctrine in suits against a bankruptcy trustee, holding that Barton applies to claims arising from “acts done in the trustee’s official capacity and within the trustee’s authority as an officer of the court.” Heavrin v. Schilling (In re Triple S Rests., Inc.), 519 F.3d 575, 578 (6th Cir.2008) (quotation omitted); see also Beck v. Fort James Corp. (In re Crown Vantage), 421 F.3d 963, 970 (9th Cir.2005) (“[A] party must first obtain leave of the bankruptcy court before it initiates an action in another forum against a bankruptcy trustee or other officer appointed by the bankruptcy court for acts done in the officer’s official capacity.”); Muratore v. Darr, 375 F.3d 140, 145 (1st Cir.2004) (applying the doctrine to claims that allege “misconduct in discharging [the] trustee’s administrative responsibilities”); Carter v. Rodgers, 220 F.3d 1249, 1252 (11th Cir.2000) (noting the doctrine is triggered by claims for “breaches of fiduciary duties stemming from [trustees’] official bankruptcy duties”). As the Seventh Circuit has held, the Barton doctrine extends to bankruptcy trustees because “[t]he trustee in bankruptcy is a statutory successor to the equity receiver” and like an equity receiver, a trustee in bankruptcy is working in effect for the court that appointed or approved him, administering property that has come under the court’s control by virtue of the Bankruptcy Code. If he is burdened with having to defend against suits by litigants disappointed by his actions on the court’s behalf, his work for the court will be impeded. In re Linton, 136 F.3d 544, 545 (7th Cir. 1998). Although our court has not yet applied Barton in a case against a bankruptcy trustee, we conclude that the reasoning of our sibling circuits is persuasive. We now hold that Barton precludes suit against a bankruptcy trustee for claims based on alleged misconduct in the discharge of a trustee’s official duties absent approval" }, { "docid": "20924127", "title": "", "text": "leave of the Bankruptcy Court before filing a state court action against a trustee; 2) the actions complained of by Heavrin were taken by the Trustee in his official capacity as trustee, and he is therefore entitled to immunity; 3) the statute of limitations applicable to Heavrin’s claims bars the suit, and; 4) Heavrin’s complaint failed to state a claim upon which relief can be granted. II. LEGAL ANALYSIS Under what is known as the Barton Doctrine, before a non-appointing court may entertain a suit against a bankruptcy trustee for acts done in the trustee’s official capacity, leave must be obtained from the appointing court; otherwise the non-appointing court lacks subject matter jurisdiction. See Barton v. Barbour, 104 U.S. 126, 14 Otto 126, 26 L.Ed. 672 (1881). In Barton, the Supreme Court held that before suit could be brought against a receiver appointed by a Federal court, “leave of the court by which he was appointed must be obtained.” Id. at 127. The rule applied to suits against receivers appointed under the Bankruptcy Act and it applies to suits against trustees under the Bankruptcy Code. The rule is a matter of federal common law. Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir.1993); In re Linton, 136 F.3d 544, 545 (7th Cir.1998); see also Muratore v. Darr, 375 F.3d 140, 147 (1st Cir.2004); Carter v. Rodgers, 220 F.3d 1249, 1252 (11th Cir.2000). The justifica tion behind the rule is that the appointing court has a strong interest in protecting the trustee from unjustified personal liability for acts taken within the scope of his official duties. Lebovits v. Scheffel (In re Lehal Realty Assoc.), 101 F.3d 272, 276 (2d Cir.1996). Under the Barton Doctrine, the instant case should not have been filed in state court without first seeking this Court’s permission. Beyond cavil, Heavrin did not obtain leave of this Court before filing suit against the Trustee in state court. Consequently, the Barton Doctrine compels dismissal of the instant action against the Trustee. The Trustee also seeks dismissal claiming immunity for actions taken in his capacity" }, { "docid": "18530641", "title": "", "text": "requires the Defendants to obtain leave of this court before seeking these sanctions. The Barton doctrine is a federal common law rule which requires a party to obtain leave of the bankruptcy court before bringing suit in a non-appointing court against a trustee for acts done in his or her official capacity. Carter v. Rodgers, 220 F.3d 1249, 1252 (11th Cir.2000). The doctrine was first articulated by the Supreme Court in Barton v. Barbour which held that “[i]t is a general rule that before suit is brought against a receiver [in state court,] leave of the court by which he was appointed must be obtained.” Barton v. Barbour, 104 U.S. 126, 127, 26 L.Ed. 672 (1881) (emphasis added). Over time, circuit courts analogized the position of a receiver in equity to that of a bankruptcy trustee and extended the doctrine accordingly. Carter, 220 F.3d at 1252. The Barton doctrine has even been applied to lawsuits filed against other attorneys who were approved by the court and acted at the direction of the trustee. Id. at 1252 n. 4; see also Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir.1993) (holding that “court appointed officers who represent the estate, are the functional equivalent of a trustee where ... they act at the direction of the trustee and for the purpose of administering the estate or protecting its assets.”) The foundation of the Barton doctrine rests on the premise that the bankruptcy court retains exclusive in rem jurisdiction over the property of the estate. In re Crown Vantage, Inc., 421 F.3d 963, 971 (9th Cir.2005). Therefore, allowing a lawsuit to proceed in another court against that estate without leave “would [be] a usurpation of the powers and duties which belong[ ] exclusively to another court.” Barton, 104 U.S. at 127. The requirement to obtain leave enables the bankruptcy court to maintain control over the estate and furthers the goal of centralizing all creditors’ claims so they can be efficiently administered. See Allard, 991 F.2d at 1240; In re Nathurst, 207 B.R. 755, 758 (Bankr.M.D.Fla.1997). By preventing creditors" }, { "docid": "20394787", "title": "", "text": "is no constitutional problem under Marathon, and because Harris’s contract suit more than “arguably” fits withm subsection (A), Castlerock does not apply and core proceeding jurisdiction existed under our holding in Harris Pine Mills. B. The district court erred when it dismissed Harris’s suit for lack of subject matter jurisdiction under the Barton doctrine. The district court erred when it affirmed the bankruptcy court’s dismissal of Harris’s suit for lack of subject matter jurisdiction under the Barton doctrine, because the Barton doctrine is not a ground to dismiss a suit that is proceeding in the appointing bankruptcy court. As applied in the Ninth Circuit, the Barton doctrine requires “that a party must first obtain leave of the bankruptcy court before it initiates an action in another forum against a bankruptcy trustee or other officer appointed by the bankruptcy court for acts done in the officer’s official capacity.” In re Crown Vantage, Inc., 421 F.3d 963, 970 (9th Cir.2005) (emphasis added). Without leave of the court that appointed the trustee (the “appointing court”), “the other forum lack[s] subject matter jurisdiction over the suit.” Id. at 971 (empha sis added). That is to say, “[a] court other than the appointing court has no jurisdiction to entertain an action against the trustee for acts within the trustee’s authority as an officer of the court without leave of the appointing court.” Id. at 974 (emphasis added). The rationale for this doctrine is that “[t]he requirement of uniform application of bankruptcy law dictates that all legal proceedings that affect the administration of the bankruptcy estate be brought either in bankruptcy court or with leave of the bankruptcy court.” Id. at 971 (emphasis added). Here, it is undisputed that Harris did not seek leave of the appointing court before filing his claim in state court. As a result, when the case was removed to bankruptcy court, the bankruptcy court held that, under the Barton doctrine, even as the appointing court, it did not have subject matter jurisdiction to hear Harris’s claim, and so dismissed the suit. This was error, however, because, absent leave of the appointing" }, { "docid": "18193673", "title": "", "text": "officer of the Court.” Leonard v. Vrooman, 383 F.2d 556, 560(9th Cir.1967). As we have noted, the BAP declined to draw such a distinction in Kashani More recently, we stated the Barton doctrine without any “proof of claim” qualifications, holding that: without leave of the bankruptcy court, no suit may be maintained against a trustee for actions taken in the administration of the estate. A court other than the appointing court has no jurisdiction to entertain an action against the trustee for acts within the trustee’s authority as an officer of the court without leave of the appointing court. Curry v. Castillo (In re Castillo), 297 F.3d 940, 945(9th Cir.2002). There are good policy reasons for rejecting the limitation urged by the Fort James Entities. If the Barton doctrine is limited, Barton will not protect trustees from suit unless the suit has the potential to affect the ratio of distribution. See, e.g., Muratore v. Darr, 375 F.3d 140 (1st Cir.2004) (noting other potential costs in such suits). As Judge Posner noted in Linton: Just like an equity receiver, a trustee in bankruptcy is working in effect for the court that appointed or approved him, administering property that has come under the court’s control by virtue of the Bankruptcy Code. If he is burdened with having to defend against suits by litigants disappointed by his actions on the court’s behalf, his work for the court will be impeded. This concern is most acute when suit is brought against the trustee while the bankruptcy proceeding is still going on. The threat of his being distracted or intimidated is then very great.... 136 F.3d at 545. This concern does not dissipate with the conclusion of the bankruptcy, as Judge Posner also underscored: Without the [Barton ] requirement, trusteeship will become a more irksome duty, and so it will be harder for courts to find competent people to appoint as trustees. Trustees will have to pay higher malpractice premiums, and this will make the administration of the bankruptcy laws more expensive (and the expense of bankruptcy is already a source of considerable concern). Furthermore," }, { "docid": "13284078", "title": "", "text": "of appeal. II. The Bankruptcy Court had jurisdiction under 28 U.S.C. § 157(b). The District Court had jurisdiction over the appeal from the Bankruptcy Court under 28 U.S.C. § 158(a), and we have jurisdiction under 28 U.S.C. §§ 158(d) and 1291. On appeal, “we ‘stand in the shoes’ of the District Court and review the Bankruptcy Court’s decision.” In re Global Indus. Techs., Inc., 645 F.3d 201, 209 (3d Cir.2011) (en bane) (citations omitted). We review the Bankruptcy Court’s legal determinations de novo, and its factual findings for clear error. Id. We review a bankruptcy court’s decision to grant a motion for leave to sue a trustee under the deferential abuse of discretion standard. In re Linton, 136 F.3d 544, 546 (7th Cir.1998); In re Beck Indus., Inc., 725 F.2d 880, 889 (2d Cir.1984). III. A. The first question presented by this case is whether a party must first obtain leave of the bankruptcy court before it brings an action in another forum against a bankruptcy trustee for acts done in the trustee’s official capacity. We now join our sister circuits in holding that, under the doctrine established in Barton v. Barbour, leave of the bankruptcy court is required before instituting such an action. See, e.g., Laurrence v. Goldberg, 573 F.3d 1265, 1269 (11th Cir.2009) (holding that the Barton doctrine is applicable to bankruptcy trustees); In re Crown Vantage, Inc., 421 F.3d 963, 970 (9th Cir.2005) (same); Muratore v. Darr, 375 F.3d 140, 143 (1st Cir.2004) (same); In re Linton, 136 F.3d at 545-46 (same); In re Lehal Realty Assocs., 101 F.3d 272, 276 (2d Cir.1996) (same); In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir.1993) (same); Anderson v. United States, 520 F.2d 1027, 1029 (5th Cir.1975) (same). Established by the Supreme Court over a century ago, the Barton doctrine provides that “before suit is brought against a receiver!,] leave of the court by which he was appointed must be obtained.” 104 U.S. at 128 (citing Davis v. Gray, 83 U.S. 203, 16 Wall. 203, 21 L.Ed. 447 (1872)). The Barton Court explained that a court approval requirement" }, { "docid": "18193663", "title": "", "text": "of a liquidating trust may be sued in a foreign jurisdiction without permission of the court appointing the trustee. A We join our sister circuits in holding that a party must first obtain leave of the bankruptcy court before it initiates an action in another forum against a bankruptcy trustee or other officer appointed by the bankruptcy court for acts done in the officer’s official capacity. See Muratore v. Darr, 375 F.3d 140, 147 (1st Cir.2004); Carter v. Rodgers, 220 F.3d 1249, 1252 (11th Cir.2000); In re Linton, 136 F.3d 544, 546(7th Cir.1998); Lebovits v. Scheffel (In re Lehal Realty Assocs.), 101 F.3d 272, 276 (2d Cir.1996); Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir.1993). In our circuit, the doctrine was recognized by our Bankruptcy Appellate Panel in Kashani v. Fulton (In re Kashani), 190 B.R. 875, 883-85 (9th Cir.BAP1995). This holding is firmly grounded in the Barton doctrine, established by the Supreme Court over a century ago, which provides that, before suit can be brought against a court-appointed receiver, “leave of the court by which he was appointed must be obtained.” 104 U.S. at 127; see also Davis v. Gray, 16 Wall. 203, 83 U.S. 203, 218, 21 L.Ed. 447 (1872) (holding that the court appointing a receiver “will not allow him to be sued touching the property in his charge, nor for any malfeasance as to the parties, or others, without [the court’s] consent”). The Court held that if leave of court were not obtained, then the other forum lacked subject matter jurisdiction over the suit. Barton, 104 U.S. at 127. Part of the rationale underlying Barton is that the court appointing the receiver has in rem subject matter jurisdiction over the receivership property. Id. at 136. As the Supreme Court explained, allowing the unauthorized suit to proceed “would have been a usurpation of the powers and duties which belonged exclusively to another court.” Id. The Barton doctrine applies in bankruptcy, because “[t]he trustee in bankruptcy is a statutory successor to the equity receiver,” and “[j]ust like the equity receiver, a trustee" }, { "docid": "4551320", "title": "", "text": "against the trustee obtain the funds necessary to pay the debt that had not been discharged. Of course principles of res judicata and the good faith of state courts would head off the worst consequences of the kind of divided jurisdiction over bankruptcy matters that we have just described. But a simpler and more secure protection is to require the person wanting to bring a suit in state court against a trustee in bankruptcy to obtain leave to do so from the bankruptcy court. Matter of Linton, 136 F.3d 544, 545-46 (7th Cir.1998) (state court action filed against trustee after chapter 7 bankruptcy case closed; plaintiffs then filed a motion in the bankruptcy court to be allowed to continue the state court action; motion denied). In both Heavrin and Linton, the bankruptcy courts arguably could have declined to apply Barton but did not. On the other hand, in Harris v. Wittman (In re Harris), 590 F.3d 730 (9th Cir.2009), the Ninth Circuit took the opposite approach. While it affirmed the dismissal of the state court action that had been removed to the bankruptcy court based on the trustee’s quasi-judicial immunity, id. at 742-44, it ruled that the mere act of removing the action to the bankruptcy court eliminated the Barton issue: Here, it is undisputed that Harris did not seek leave of the appointing court before filing his claim in state court. As a result, when the case was removed to bankruptcy court, the bankruptcy court held that, under the Barton doctrine, even as the appointing court, it did not have subject matter jurisdiction to hear Harris’s claim, and so dismissed the suit. This was error, however, because, absent leave of the appointing court, the Barton doctrine denies subject matter jurisdiction to all forums except the appointing court. The Barton doctrine is a practical tool to ensure that all lawsuits that could affect the administration of the bankruptcy estate proceed either in the bankruptcy court, or with the knowledge and approval of the bankruptcy court. The Barton doctrine is not a tool to punish the unwary by denying any forum" }, { "docid": "11309269", "title": "", "text": "Malloy’s Fed.R.Civ.P. 12(b)(6) motion, concluding that the Barton doctrine barred Satterfield’s claims. Satterfield timely appealed. II As an initial matter, we note that the Barton doctrine is jurisdictional in nature. See Barton, 104 U.S. at 131 (without leave of the appointing court, another court has “no jurisdiction to entertain a suit” against a receiver). Accordingly, dismissal under Barton should be made pursuant to Fed.R.Civ.P. 12(b)(1) rather than 12(b)(6). Nevertheless, the standard of review is de novo under either subsection. See Colo. Envtl. Coal. v. Wenker, 353 F.3d 1221, 1227 (10th Cir.2004). We will treat the dismissal as one having occurred under Rule 12(b)(1). See id. (considering appeal under Rule 12(b)(1) standards because grounds relied upon by district court were jurisdictional). A In Barton, the Supreme Court held that “before suit is brought against a receiver leave of the court by which he was appointed must be obtained.” 104 U.S. at 128. A plaintiff who brings such a suit, the Court explained, attempts to “obtain some advantage over the other claimants upon the assets in the receiver’s hands.” Id. If allowed to proceed, “the court which appointed the receiver and was administering the trust assets would be impotent to restrain” such a plaintiff, complicating the proper administration of the estate. Id. Our sibling circuits have frequently applied this doctrine in suits against a bankruptcy trustee, holding that Barton applies to claims arising from “acts done in the trustee’s official capacity and within the trustee’s authority as an officer of the court.” Heavrin v. Schilling (In re Triple S Rests., Inc.), 519 F.3d 575, 578 (6th Cir.2008) (quotation omitted); see also Beck v. Fort James Corp. (In re Crown Vantage), 421 F.3d 963, 970 (9th Cir.2005) (“[A] party must first obtain leave of the bankruptcy court before it initiates an action in another forum against a bankruptcy trustee or other officer appointed by the bankruptcy court for acts done in the officer’s official capacity.”); Muratore v. Darr, 375 F.3d 140, 145 (1st Cir.2004) (applying the doctrine to claims that allege “misconduct in discharging [the] trustee’s administrative responsibilities”); Carter v. Rodgers, 220 F.3d" }, { "docid": "18193662", "title": "", "text": "Delaware Action. The bankruptcy court held that the Delaware Action violated Barton and that the Settlement Agreement’s forum selection clause did not control. The Fort James Entities appealed the bankruptcy court’s grant of a preliminary injunction to the district court. The district court affirmed the bankruptcy court in part and reversed in part. The district court held that the bankruptcy court correctly found that the Liquidating Trustee was likely to prevail on his claim that the Fort James Entities violated the Barton doctrine by initiating the Delaware Action without permission. However, the district court held that the bankruptcy court erred in granting the preliminary injunction because the Liquidating Trustee had failed to establish irreparable harm. The district court therefore vacated the preliminary injunction issued by the bankruptcy court. This appeal and cross-appeal followed. The Liquidating Trustee appealed the district court’s order vacating the injunction; Fort James cross-appealed the district court’s conclusions concerning application of the Barton doctrine. II The first question presented by this case is whether, and to what extent, a bankruptcy court-appointed trustee of a liquidating trust may be sued in a foreign jurisdiction without permission of the court appointing the trustee. A We join our sister circuits in holding that a party must first obtain leave of the bankruptcy court before it initiates an action in another forum against a bankruptcy trustee or other officer appointed by the bankruptcy court for acts done in the officer’s official capacity. See Muratore v. Darr, 375 F.3d 140, 147 (1st Cir.2004); Carter v. Rodgers, 220 F.3d 1249, 1252 (11th Cir.2000); In re Linton, 136 F.3d 544, 546(7th Cir.1998); Lebovits v. Scheffel (In re Lehal Realty Assocs.), 101 F.3d 272, 276 (2d Cir.1996); Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir.1993). In our circuit, the doctrine was recognized by our Bankruptcy Appellate Panel in Kashani v. Fulton (In re Kashani), 190 B.R. 875, 883-85 (9th Cir.BAP1995). This holding is firmly grounded in the Barton doctrine, established by the Supreme Court over a century ago, which provides that, before suit can be brought against a court-appointed" }, { "docid": "21021071", "title": "", "text": "contravention of the Bankruptcy Code. See 11 U.S.C. § 701(a)(1) (“[T]he United States trustee shall appoint one disinterested person ... to serve as ... trustee.”); 11 U.S.C. § 327(a) (“[T]he trustee ... may employ ... auctioneers ... that do not hold or represent an interest adverse to the estate.”). As a result, Rodgers resigned as Trustee, and Clements Antiques returned all commissions and buyer’s premiums received in connection with the auction. Carter filed this civil action in district court seeking compensatory and punitive damages from Trustee Rodgers, Clements, and Clements Antiques based on alleged breaches of fiduciary duties and duties of reasonable care with respect to Carter’s bankruptcy estate. The district court found that Carter failed to obtain leave of the bankruptcy court before filing this lawsuit and dismissed Carter’s lawsuit pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Carter timely appealed. II. DISCUSSION A. The Barton Doctrine This case presents an issue of first impression in this circuit regarding whether a debtor first must obtain leave from the bankruptcy court before it can initiate an action in the district court when that action is against the trustee or other bankruptcy-court-appointed officer, for acts done in the actor’s official capacity. Joining the other circuits that have considered this issue, we hold that a debtor must obtain leave of the bankruptcy court before initiating an action in district court when that action is against the trustee or other bankruptcy-court-appointed officer, for acts done in the actor’s official capacity. See Springer v. Infinity Group Co., No. 98-5182, 189 F.3d 478 (10th Cir. Aug.26, 1999) (unpublished table decision), cert. denied, — U.S. —, 120 S.Ct. 1422, 146 L.Ed.2d 314 (2000); Gordon v. Nick, No. 96-1858, 162 F.3d 1155 (4th Cir. Sept.2, 1998) (unpublished table decision); In re Linton, 136 F.3d 544, 546 (7th Cir.1998); Lebovits v. Scheffel (In re Lehal Realty Assocs.), 101 F.3d 272 (2d Cir.1996); Allard v. Weitzman (In re DeLore-an Motor Co.), 991 F.2d 1236, 1240 (6th Cir.1993); Vass v. Conron Bros. Co., 59 F.2d 969, 970 (2d Cir.1932); Kashani v. Fulton (In re" }, { "docid": "10724335", "title": "", "text": "her capacity as a receiver. See id. at 133-35; In re Crown Vantage, Inc., 421 F.3d 963, 971 (9th Cir.2005) (“The Barton doctrine applies in bankruptcy, because the trustee in bankruptcy is a statutory successor to the equity receiver, and just like the equity receiver, a trustee in bankruptcy is working in effect for the court that appointed or approved him, administering property that has come under the court’s control by virtue of the Bankruptcy Code.”) (quotations and citations omitted); Carter v. Rodgers, 220 F.3d 1249, 1252 (11th Cir.2000) (“we hold that a debtor must obtain leave of the bankruptcy court before initiating an action in district court when that action is against the trustee or other bankruptcy-court-appointed officer, for acts done in the actor’s official capacity.”); In re Linton, 136 F.3d 544, 546 (7th Cir.1998); Lebovits v. Scheffel (In re Lehal Realty Assocs.), 101 F.3d 272, 276 (2d Cir.1996); Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir.1993). As these cases demonstrate, Barton’s holding has been extended beyond receivers and applied in cases involving bankruptcy trustees and others. The Barton Court ruling employed the equity receivership principle in the context of a tort action involving a railroad operated by a receiver appointed by a Virginia court. The injured individual, Barton, brought suit in the District of Columbia. As the Supreme Court recognized, If the court below had entertained jurisdiction of this suit, it would have been an attempt on its part [to] adjust charges and expenses incident to the administration by the court of another jurisdiction of trust property in its possession, and to enforce the payment of such charges and expenses out of the trust property without the leave of the court which was administering it, and without consideration of the rights and equities of other claimants thereto. It would have been an usurpation of the powers and duties which belonged exclusively to another court, and it would have made impossible of performance the duty of that court to distribute the trust assets to creditors equitably and according to their respective priorities. Id." } ]

[ { "docid": "21554420", "title": "", "text": "Remmer v. United States, 347 U.S. at 229, 74 S.Ct. at 451; United States v. Day, 830 F.2d at 1103. “[D]ue process does not require a new trial every time a juror has been placed in a potentially compromising situation.” Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982) (addressing due process claim premised on juror bias). When a trial court is apprised of the fact that an extrinsic influence may have tainted the trial, the proper remedy is a hearing to determine the circumstances of the improper contact and the extent of the prejudice, if any, to the defendant. Id. 102 S.Ct. at 217; Remmer v. United States, 347 U.S. at 229-30, 74 S.Ct. at 451. The court’s questioning of a juror who is the recipient of extraneous information is limited to the circumstances and nature of the improper contact, as Fed.R.Evid. 606(b) precludes the court from delving into the subjective effect of the contact on the juror’s decision-making. Accordingly, an objective test should be applied in making an assessment of whether the defendant was prejudiced by the extraneous information. See United States v. Bruscino, 687 F.2d 938, 940-41 (7th Cir.1982) (en banc), cert. denied, 459 U.S. 1228, 103 S.Ct. 1235, 75 L.Ed.2d 468 (1983); Miller v. United States, 403 F.2d 77, 83 n. 11 (2d Cir.1968); see also 3 J. Weinstein & M. Berger, Weinstein's Evidence ¶ 606[05] (1987). The court “should assess the ‘possibility of prejudice’ by reviewing the entire record, analyzing the substance of the extrinsic evidence, and comparing it to that information of which the jurors were properly aware.” United States v. Weiss, 752 F.2d 777, 783 (2d Cir.), cert. denied, 474 U.S. 944, 106 S.Ct. 308, 88 L.Ed.2d 285 (1985). In the instant case, the trial court properly conducted two hearings to determine the nature and possible prejudicial effect of the third-party contact. Applying the presumption of prejudice, the court determined that in light of the overwhelming evidence of defendant’s guilt, the contact was harmless. We agree with the district court that the information imparted to juror Curry" } ]

[ { "docid": "13983737", "title": "", "text": "F.2d 639, 641 (8th Cir.1984) (extra-judicial information); Owen v. Duckworth, 727 F.2d 643, 644 (7th Cir.1984) (threat). The judge specifically asked the juror if the contact would have any bearing on her ability to render a fair and impartial verdict, and she stated that it would not. Although some courts have doubted the reliability of juror responses to this kind of question, the Supreme Court has settled that such testimony is not “inherently suspect,” for a juror “ ‘is well qualified to say whether he has an unbiased mind in a certain matter.’ ” Phillips, 455 U.S. at 217 n. 7, 102 S.Ct. at 946 n. 7 (quoting Dennis v. United States, 339 U.S. 162, 171, 70 S.Ct. 519, 523, 94 L.Ed. 734 (1950)). These facts fully justify the trial judge’s ruling that the contact was harmless. The principal shortcoming of the trial judge’s handling of the matter was his failure to determine at the hearing whether the juror had discussed the incident with anyone else on the jury. The judge admonished her not to mention it to the other jurors; it would have been a simple matter for him merely to ask her if she had done so already. The omission of this question later resulted in additional problems and necessitated the reassembling of all the other jurors at a post-trial hearing. That was regrettable. We understand that the matter may be clearer in hindsight and also that the judge may have thought himself entitled to rely on the representations made by the deputy marshal, but it would be better practice to put all relevant questions directly to the juror. We believe, nevertheless, that the inquiries made at the post-trial hearing were adequate to support the trial court’s conclusion that any discussion of the contact among the jurors did not prejudice the defendants. Again, the judge’s inquiries uncovered what each juror knew of the contact, and ascertained that this knowledge did not render any juror unable to return a fair and impartial verdict. Even though this testimony* came after trial, thus raising some concern about whether the jurors might" }, { "docid": "22146156", "title": "", "text": "accorded a district court’s findings made after a properly conducted hearing: The safeguards of juror impartiality, such as voir dire and protective instructions from the trial judge, are not infallible; it is virtually impossible to shield jurors from- every contact or influence that might theoretically affect their vote. Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial oc currences and to determine the effect of such occurrences when they■ happen. Such determinations may properly be made at a hearing like that ordered in Remmer and held in this case. [Emphasis supplied.] 455 U.S. at 217, 102 S.Ct. at 946. This language is consistent with the rule, adopted by several courts of appeals prior to Phillips, that a district court’s decision not to grant a mistrial after investigating allegations of unauthorized contact with jurors should be reviewed only for abuse of discretion. See United States v. Phillips, 664 F.2d 971, 998-99 (5th Cir.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982); United States v. Armstrong, 654 F.2d 1328, 1332 (9th Cir. 1981), cert. denied, 454 U.S. 1157, 102 S.Ct. 1032, 71 L.Ed.2d 315 (1982); United States v. Almonte, 594 F.2d 261, 265-66 (1st Cir. 1979); United States v. Fleming, 594 F.2d 598, 608 (7th Cir.), cert. denied, 442 U.S. 931, 99 S.Ct. 2863, 61 L.Ed.2d 299 (1979). We hereby adopt the abuse of discretion standard of review. Finally, in contrast with this court’s opinions in Ferguson and Stone, the Supreme Court in Phillips stated that juror testimony at Remmer hearings, often the evidence upon which such hearings will turn, should not be regarded as “inherently suspect.” 455 U.S. at 217 n. 7, 102 S.Ct. at 946 n. 7. Indeed, the Court emphasized that “one who is trying as an honest man to live up to the sanctity of his oath is well qualified to say whether he has an unbiased mind in a certain matter.” Id.; cf. United States v. Blanton, 719 F.2d 815 (6th Cir.1983) (en banc) (juror" }, { "docid": "21857619", "title": "", "text": "court’s finding on jury prejudice issue entitled to deference). The finding in this case was clearly reasonable. No threats had been made to jurors nor had any names of defendants been mentioned, and the jurors, once sequestered, could be assured of their safety. Juror No. l’s statements indicated that she did not believe that her ability to act fairly with respect to any of the defendants had been compromised by the third party communication. Cf. Smith v. Phillips, supra, 455 U.S. at 217 n. 7, 102 S.Ct. at 946 n. 7 (quoting Dennis v. United States, 339 U.S. 162, 171, 70 S.Ct. 519, 523, 94 L.Ed. 734 (1950)) (“ ‘[0]ne who is trying as an honest man to live up to the sanctity of his oath [as a juror] is well qualified to say whether he has an unbiased mind in a certain matter.’ ”). In response to the judge’s final question whether she could “sit fairly and impartially on this jury and come to a conclusion?” she answered “I think so.” At other points during the voir dire, she gave unequivocal answers to questions the judge posed about her capacity to act fairly, impartially, and without bias or prejudice. The accuracy of the district judge’s finding about the ability of the jury to render an impartial verdict is confirmed by the care which the jury took in its deliberations; over a period of four days it requested multiple readbacks of testimony and then determined that some defendants should be acquitted altogether, that others should be acquitted on some charges, and that others were guilty of all crimes charged. Given the jurors’ ignorance of the identity of the anonymous third person who approached juror No. 1 and which defendant, if any, that person represented, the jury’s careful discrimination in weighing the evidence with respect to each defendant indicates strongly that it was not influenced by the third person’s communications with juror No. 1. The Admission of the Videotaped Evidence ■ Although appellants did not at trial object on constitutional grounds to the admission of videotapes of the activity in the" }, { "docid": "22221096", "title": "", "text": "Cir.), cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1318 (1983). There is no necessity, drawing nigh the end of so protracted an opinion, to wax longiloquent. The jurors’ assertions of continued impartiality, favorably appraised by the court, comprise testimonials that are not “inherently suspect,” for a juror is “well qualified to say whether he has an unbiased mind in a certain matter.” Smith, 455 U.S. at 217 n. 7, 102 S.Ct. at 946 n. 7 (quoting Dennis v. United States, 339 U.S. 162, 171, 70 S.Ct. 519, 523, 94 L.Ed. 734 (1950)); see also Angiulo, at 1186-87 (trial court may rely on juror’s statement of continued impartiality); Butler, 822 F.2d at 1196 (juror’s statement that improper contact would have no bearing was considered reliable); United States v. Pennell, 737 F.2d 521, 533 (6th Cir.1984) (court may rely upon juror assurances of continued impartiality). On the whole, the record bulwarks the court’s conclusion that the jurors’ answers were credible and their statements reliable. The court’s recital of a near-googol of other reasons indicating continued impartiality, 698 F.Supp. at 393, most based on personal observation, comports with the record and deserves great respect. Even though some jurors acknowledged commenting on the evidence, particularly in reference to defendant Shee-han, their discussions, as depicted in the majority of the interviews, were not so extensive or pervasive as necessarily to have affected the verdict’s integrity. In short, the evidence adduced through the juror interviews indicated no actual bias. The trial judge’s findings confirmed this conclusion. His record-rooted evaluation of the situation merits considerable weight. See Hunnewell, 891 F.2d at 961; Dickson, 849 F.2d at 405; United States v. Santiago-Fraticelli, 780 F.2d 828, 830 (1st Cir.1984). What is more, the judge instructed the jury on several occasions during the trial to keep their minds open, to remember the presumption of innocence, and the like. There is a presumption that the jurors followed these instructions — and nothing tangible here to surmount it. Appellants’ claims of irremediable prejudice were sufficiently addressed and rebutted. There was no abuse of discretion anent the denial of posttrial" }, { "docid": "23249661", "title": "", "text": "juror is ‘presumptively prejudi cial.’ ” United States v. Hillard, 701 F.2d 1052, 1064 (2d Cir.), cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1318 (1983) (citing Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654, 656 (1954)). This presumption may be rebutted, however, by an affirmative showing on the part of the government that the information was harmless. Id. “The touchstone of decision in a case such as we have here is thus not the mere fact of infiltration of some molecules of extra-record matter, ... but the nature of what has been infiltrated and the probability of prejudice.” United States ex rel. Owen v. McMann, 435 F.2d 813, 818 (2d Cir.1970), cert. denied, 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d 646 (1971) (citations omitted). The trial court should assess the “possibility of prejudice” by reviewing the entire record, analyzing the substance of the extrinsic evidence, and comparing it to that information of which the jurors were properly aware. Sher v. Stoughton, 666 F.2d 791, 794 (2d Cir.1981). The court may properly conclude that such extra-record information was non-prejudicial if it determines that an abundance of properly admitted evidence relevant to this matter exists. Hillard, supra, at 1064; Sher, supra, at 793-94. Additionally, the trial court has broad discretion in reviewing the issue of the prejudicial effect of the infiltration of extra-record evidence into the deliberations of the jury. Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1173, 3 L.Ed.2d 1250, 1252 (1959); United States v. Panebianco, 543 F.2d 447, 457 (2d Cir.1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1129, 51 L.Ed.2d 553 (1977); United States v. Flynn, 216 F.2d 354, 372 (2d Cir.1954), cert. denied, 348 U.S. 909, 75 S.Ct. 295, 99 L.Ed. 713 (1955). “[A] trial judge’s handling of alleged juror misconduct or bias is only reviewable for abuse of discretion.” Panebianco, supra, at 457. After an exhaustive evidentiary hearing on the issue of jury contamination, the trial judge concluded that the infiltration of the material from an accounting text into deliberations of the" }, { "docid": "8427583", "title": "", "text": "and conscientiously observe the instructions and admonitions of the court.” United States v. Rosario, 111 F.3d 293, 300 (2d Cir.1997) (quoting United States v. Easter, 981 F.2d 1549, 1553 (10th Cir.1992)). As the Supreme Court observed in Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), “one who is trying as an honest man to live up to the sanctity of his oath is well qualified to say whether he has an unbiased mind in a certain matter.” Id. at 217 n. 7, 102 S.Ct. 940 (rejecting habeas petitioner’s argument that testimony of juror with alleged conflict of interest was “inherently suspect”) (quoting Dennis v. United States, 339 U.S. 162, 171, 70 S.Ct. 519, 94 L.Ed. 734 (1950)). The court did not abuse its discretion by accepting the jurors’ account. Because the court found properly that there had been no misconduct, defendants’ reliance on United States v. Resko, 3 F.3d 684 (3d Cir.1993), is misplaced. In Resko, the district court ascertained by questionnaire that all of the jurors had engaged in premature deliberation, but that none of them had formed an opinion about the defendants’ guilt. Id. at 688. The Third Circuit remanded for a new trial because the proof of juror misconduct required a more searching inquiry into prejudice. Id. at 694. In the present case, no juror said that there had been premature deliberations. Judge Nevas conducted an individualized examination of the two jurors he thought were relevant and found neither misconduct nor prejudice. In an abundance of caution, Judge Nevas gave reinforcing instructions. He reminded the jurors “not to discuss this case with anyone,” “not to make any determinations until you have heard all the evidence,” and to keep an open mind and await all of the evidence, closing arguments, and instructions. (Tr. of Jury Trial, dated Jan. 19, 2001, at 47-48; Tr. of Jury Trial, dated Jan. 22, 2001, at 14.) “In many instances, the court’s reiteration of its cautionary instructions to the jury is all that is necessary.” Thai, 29 F.3d at 803; see also Abrams, 137 F.3d at 708 (holding" }, { "docid": "17091331", "title": "", "text": "juror’s mere relationship to a law enforcement officer is insufficient to strike for cause. See Brogdon v. Butler, 838 F.2d 776, 778 n. 1 (5th Cir.1988) (trial court did not abuse its discretion in refusing to excuse for cause a prospective juror who was married to a law enforcement officer and whose uncle by marriage was an investigator for the District Attorney’s Office). Nor will we mandate that the mere fact that a potential juror is a prison employee or an FBi agent requires that the trial judge strike for cause. We agree with the Second Circuit that a trial court “is not required to excuse any juror on the basis of his occupational background so long as the court is able to conclude that the juror would be able to view the evidence with impartiality and to decide the case without bias.” United States v. Maldonado-Rivera, 922 F.2d 934, 970-71 (2nd Cir.1990). In this regard, we think it significant that the trial judge observed the challenged jurors swear under oath that they could be impartial, for “Absent any reason to suspect that these responses were untrue, we must credit them; ‘surely one who is trying as an honest man to live up to the sanctity of his oath is well qualified to say whether he has an unbiased mind in a certain matter.’” United States v. York, 933 F.2d 1343, 1367 (7th Cir.1991) (quoting Dennis v. United States, 339 U.S. 162, 171, 70 S.Ct. 519, 523, 94 L.Ed. 734 (1950)), cert. denied, — U.S. —, 112 S.Ct. 321, 116 L.Ed.2d 262 (1991). In this case, the record contains no evidence to suggest that any of the four venire members would have violated then-oath had they been seated. But even assuming that the trial court should have stricken one or more of them for cause, the Supreme Court has determined that “[s]o long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean that the Sixth Amendment was violated.” Ross v. Oklahoma, 487 U.S. 81," }, { "docid": "2054178", "title": "", "text": "comes to the attention of a juror is ‘presumptively prejudicial.’ ” United States v. Hillard, 701 F.2d 1052, 1064 (2d Cir.) (quoting Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954)), cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1318 (1983); see United States v. Weiss, 752 F.2d 777, 782-83 (2d Cir.), cert. denied, 474 U.S. 944, 106 S.Ct. 308, 88 L.Ed.2d 285 (1985). Yet, the presumption may be rebutted by a showing that the information is harmless. A trial judge is generally in the best position to evaluate the critical question of whether the jury’s exposure to extra-record evidence prejudiced the defendant. Weiss, 752 F.2d at 783; Hillard, 701 F.2d at 1064. After examining the exhibit list and hearing arguments from both the defense and prosecution on the issue of jury contamination, Judge Munson ruled that the exhibit list’s intrusion into the jury’s deliberations was not unfairly prejudicial. An examination of the exhibit list reveals that it is “neutral or objective.” Hence, we see no reason to second-guess the district court’s conclusion that the jury’s exposure to it was therefore harmless. Compare Weiss, 752 F.2d at 782-83 (juror’s reading a short, definitional excerpt from an accounting textbook to fellow jurors considered harmless) and Hillard, 701 F.2d at 1068-64 (jury’s exposure to information concerning the existence of a heroin ring and rumors about defense counsel held harmless) with United States v. Camporeale, 515 F.2d 184, 188-89 (2d Cir.1975) (reversing conviction where court clerk gave jury a portion of defendants’ grand jury testimony which counsel for both sides had stipulated would be excluded). Any possible prejudice was cured by the district court’s “prompt inquiry and ... curative instruction.” Hil-lard, 701 F.2d at 1064. Consequently, the refusal to grant a mistrial was not an abuse of the trial court's discretion. CONCLUSION Accordingly, Reynolds’ conviction on Count VII is reversed and the matter is remanded to the district court to dismiss that count of the indictment and to remit any portion of the $2,500 fine imposed attributable to that conviction. The other judgments of" }, { "docid": "16246055", "title": "", "text": "that the presumption of prejudice resulting from the improper contact in that case was overcome by overwhelming evidence of the defendant’s guilt. Id. at 1045; see also United States v. Greer, 620 F.2d 1383 (10th Cir.1980) (where United States Deputy Marshal engaged in extensive lunchtime conversation with several jurors regarding Federal Youth Correction Act and its effect upon sentencing, two judges agreed that a rebuttable presumption of prejudice arose). Other circuits have similarly held that a jury’s exposure to extrinsic material gives rise to the rebuttable presumption of prejudice established in Remmer. See, e.g., United States v. Perkins, 748 F.2d 1519, 1533 (11th Cir.1984) (“Prejudice from extrinsic evidence is assumed in the form of a rebuttable presumption and the government bears the burden of demonstrating that the consideration of the evidence was harmless.”) (citations omitted); United States v. Hillard, 701 F.2d 1052, 1064 (2d Cir.) (“[EJxtra-record information that comes to the attention of a juror is ‘presumptively prejudicial.’ But the presumption may be rebutted by a showing that the information is harmless.”) (citations omitted), cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1318 (1983); United States v. Bassler, 651 F.2d 600, 603 (8th Cir.) (“Because Rule 606(b) precludes the district court from investigating the subjective effects of any extrinsic material on the jurors, whether such effects might be shown to affirm or negate the conclusion of actual prejudice, a presumption of prejudice is created and the burden is on the government to prove harmlessness.”) (citations omitted), cert. denied, 454 U.S. 944, 102 S.Ct. 485, 70 L.Ed.2d 254 (1981), and cert. denied, 454 U.S. 1151, 102 S.Ct. 1018, 71 L.Ed.2d 305 (1982); United States v. Howard, 506 F.2d 865, 869 (5th Cir.1975) (when jurors are exposed to extrinsic matter, “prejudice will be assumed in the form of a rebuttable presumption, and the burden is on the Government to demonstrate the harmlessness ... to the defendant.”) (citations omitted); cf Stiles v. Lawrie, 211 F.2d 188,190 (6th Cir.1954) (in a civil action where jury consulted a manual not in evidence, presumption of prejudice applies “unless [record is] entirely devoid of any" }, { "docid": "21857618", "title": "", "text": "States v. Williams, 737 F.2d 594, 612 (7th Cir.1984), cert. denied, — U.S. ---, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985) (finding it permissible that counsel merely received a transcript of the judge’s inquiries to jurors exposed to third party); United States v. Buchanan, 633 F.2d 423, 427 (5th Cir.), cert. denied, 451 U.S. 912, 101 S.Ct. 1984, 68 L.Ed.2d 301 (1981) (only court reporter and law clerks present during juror interviews). The district court’s finding, after a hearing, that no prejudice had occurred from the third party contact and that the jury remained able to render an impartial verdict is entitled to deference. See, e.g., Patton v. Yount, — U.S. ---, 104 S.Ct. 2885, 2892 n. 12, 81 L.Ed.2d 847 (1984) (district court’s finding of fact on whether juror should be disqualified may be set aside only for “manifest error”); Rushen v. Spain, supra, 104 S.Ct. at 456 (trial court’s factual finding that jury’s deliberations were not biased deserves a “high measure of deference”); United States v. Bufalino, supra, 576 F.2d at 451 (district court’s finding on jury prejudice issue entitled to deference). The finding in this case was clearly reasonable. No threats had been made to jurors nor had any names of defendants been mentioned, and the jurors, once sequestered, could be assured of their safety. Juror No. l’s statements indicated that she did not believe that her ability to act fairly with respect to any of the defendants had been compromised by the third party communication. Cf. Smith v. Phillips, supra, 455 U.S. at 217 n. 7, 102 S.Ct. at 946 n. 7 (quoting Dennis v. United States, 339 U.S. 162, 171, 70 S.Ct. 519, 523, 94 L.Ed. 734 (1950)) (“ ‘[0]ne who is trying as an honest man to live up to the sanctity of his oath [as a juror] is well qualified to say whether he has an unbiased mind in a certain matter.’ ”). In response to the judge’s final question whether she could “sit fairly and impartially on this jury and come to a conclusion?” she answered “I think so.” At other points" }, { "docid": "22221095", "title": "", "text": "of the jury. In approaching this issue, we adopt the Second Circuit’s description of the beacon by which courts must steer: the criterion for a “post-verdict determination of extra-record prejudice must be an objective one, measured by reference to its probable effect on ‘a hypothetical average juror.' ” United States v. Calbas, 821 F.2d 887, 896 (2d Cir.1987), cert. denied, 485 U.S. 937, 108 S.Ct. 1114, 99 L.Ed.2d 275 (1988). In determining whether the trier strayed off course, we use an abuse-of-discretion compass. In this instance, we find the district court’s conclusions to be unimpugna-ble. Indeed, even if a Remmer-type presumption had come into play, it would be overcome by the cogency of the findings, 698 F.Supp. at 392-93, that the circulation of Boston magazine among some jurors, and the jurors’ remarks during trial, whether viewed separately or collectively, were harmless. See United States v. Hor-nung, 848 F.2d 1040, 1044 n. 3 (10th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1349, 103 L.Ed.2d 817 (1989); United States v. Hillard, 701 F.2d 1052, 1064 (2d Cir.), cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1318 (1983). There is no necessity, drawing nigh the end of so protracted an opinion, to wax longiloquent. The jurors’ assertions of continued impartiality, favorably appraised by the court, comprise testimonials that are not “inherently suspect,” for a juror is “well qualified to say whether he has an unbiased mind in a certain matter.” Smith, 455 U.S. at 217 n. 7, 102 S.Ct. at 946 n. 7 (quoting Dennis v. United States, 339 U.S. 162, 171, 70 S.Ct. 519, 523, 94 L.Ed. 734 (1950)); see also Angiulo, at 1186-87 (trial court may rely on juror’s statement of continued impartiality); Butler, 822 F.2d at 1196 (juror’s statement that improper contact would have no bearing was considered reliable); United States v. Pennell, 737 F.2d 521, 533 (6th Cir.1984) (court may rely upon juror assurances of continued impartiality). On the whole, the record bulwarks the court’s conclusion that the jurors’ answers were credible and their statements reliable. The court’s recital of a near-googol of other reasons indicating" }, { "docid": "2054177", "title": "", "text": "exhibit list’s impact on the jury. The United States attorney effectively argued that the defendants had not been unfairly prejudiced. In fact, the exhibit list’s presence in the jury room was so patently harmless that a much less extensive statement from the government would have rebutted the presumption of prejudice. After the oral argument Chief Judge Munson concluded that though the list’s presence in the jury room was “not desirable,” its characterizations of exhibits were “neutral or objective” and most of the listed exhibits had been admitted into evidence or used to refresh recollection. The trial judge again instructed the jurors to disregard the list. Juror Thrall responded that the jury had used the list as “an index,” not as evidence; juror Bennett stated that the jury “didn’t consider it at all”; and juror Helwig said he “was going to say the same thing” (as Bennett, presumably). Appellants insist that the district judge erred by failing to grant a mistrial on the basis of the jury’s exposure to the exhibit list. Concededly, “extra-record information that comes to the attention of a juror is ‘presumptively prejudicial.’ ” United States v. Hillard, 701 F.2d 1052, 1064 (2d Cir.) (quoting Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954)), cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1318 (1983); see United States v. Weiss, 752 F.2d 777, 782-83 (2d Cir.), cert. denied, 474 U.S. 944, 106 S.Ct. 308, 88 L.Ed.2d 285 (1985). Yet, the presumption may be rebutted by a showing that the information is harmless. A trial judge is generally in the best position to evaluate the critical question of whether the jury’s exposure to extra-record evidence prejudiced the defendant. Weiss, 752 F.2d at 783; Hillard, 701 F.2d at 1064. After examining the exhibit list and hearing arguments from both the defense and prosecution on the issue of jury contamination, Judge Munson ruled that the exhibit list’s intrusion into the jury’s deliberations was not unfairly prejudicial. An examination of the exhibit list reveals that it is “neutral or objective.” Hence, we see no" }, { "docid": "22221094", "title": "", "text": "F.2d 877, 888 (9th Cir.1981) (per curiam), cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982)). We will not essay so long a logical leap — nor will we fault the district court for eschewing it. Cf. Angiulo, at 1185 (ex parte contact more likely harmless if not pertinent to substantive matters at trial). By the same token, the jurors’ midtrial buzznacking also lacked the strong degree of probability needed to animate a Rem-mer-type presumption. See, e.g., Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751 (1961); Reynolds v. United States, 98 U.S. 145, 155-56, 25 L.Ed. 244 (1878). This is particularly so given the district court’s express (and well substantiated) finding that no jury-room discussion had occurred “which reflected a fixed opinion or which would have influenced any other juror to close their [sic] mind to the remaining evidence.” Boylan, 698 F.Supp. at 393. 3. Assessment of the Facts. Appellants also asseverate that the judge unreasonably and unsupportably denied them a new trial based on contamination of the jury. In approaching this issue, we adopt the Second Circuit’s description of the beacon by which courts must steer: the criterion for a “post-verdict determination of extra-record prejudice must be an objective one, measured by reference to its probable effect on ‘a hypothetical average juror.' ” United States v. Calbas, 821 F.2d 887, 896 (2d Cir.1987), cert. denied, 485 U.S. 937, 108 S.Ct. 1114, 99 L.Ed.2d 275 (1988). In determining whether the trier strayed off course, we use an abuse-of-discretion compass. In this instance, we find the district court’s conclusions to be unimpugna-ble. Indeed, even if a Remmer-type presumption had come into play, it would be overcome by the cogency of the findings, 698 F.Supp. at 392-93, that the circulation of Boston magazine among some jurors, and the jurors’ remarks during trial, whether viewed separately or collectively, were harmless. See United States v. Hor-nung, 848 F.2d 1040, 1044 n. 3 (10th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1349, 103 L.Ed.2d 817 (1989); United States v. Hillard, 701 F.2d 1052, 1064 (2d" }, { "docid": "23197940", "title": "", "text": "1084, 105 S.Ct. 1843, 85 L.Ed.2d 142 (1985) (civil case). . Smith v. Phillips speaks to the propriety of questioning the jurors: Respondent correctly notes that determinations made in Remmer-type hearings will frequently turn upon testimony of the juror in question, but errs in contending that such evidence is inherently suspect. As we said in Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519, 94 L.Ed. 734 (1950), '[o]ne may not know or altogether understand the imponderables which cause one to think what he thinks, but surely one who is trying as an honest man to live up to the sanctity of his oath is well qualified to say whether he has an unbiased mind in a certain matter.’ Id., at 171, 70 S.Ct., at 523. See also United States v. Reid, 12 How. 361, 366, 13 L.Ed. 1023 (1852). 455 U.S. at 217 n. 7, 102 S.Ct. at 946 n. 7. . We note that Fryar has been convicted of using Terracina's uncle to offer Terracina a $10,000 bribe. United States v. Fryar, No. CR-87-60027-01 (W.D. La., conviction entered Mar. 14, 1988), appeal docketed, No. 88-4200 (5th Cir. Mar. 14, 1988)." }, { "docid": "23197939", "title": "", "text": "229, 74 S.Ct. at 451 (citations omitted). We have long held that “the integrity of the jury system is no less to be desired in civil cases.\" United States v. Harry Barfield Co., 359 F.2d 120, 124 (5th Cir.1966). See also Haley; Hobson v. Wilson, 737 F.2d 1 (D.C.Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1843, 85 L.Ed.2d 142 (1985); Butler. . 455 U.S. at 214, 102 S.Ct. at 944 (quoting from the trial court’s findings in People v. Phillips, 87 Misc.2d 613, 618-19, 384 N.Y.S.2d 906, 910 (1975)). . See United States v. Littlefield, 752 F.2d 1429, 1431-32 (9th Cir.1985) (criticizing Pennell); Haley, 802 F.2d at 1535 (distinguishing Phillips); Butler, 822 F.2d at 1195-96 n. 2 (rejecting Pennell and concluding that \"Remmer’s allocation of the burden remains the law\"). . See, e.g., Owen v. Duckworth, 727 F.2d 643 (7th Cir.1984); United States v. Delaney, 732 F.2d 639, 643 (8th Cir.1984); United States v. Hines, 696 F.2d 722, 730-31 (10th Cir.1982); Hobson v. Wilson, 737 F.2d 1, 47-49 (D.C. Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1843, 85 L.Ed.2d 142 (1985) (civil case). . Smith v. Phillips speaks to the propriety of questioning the jurors: Respondent correctly notes that determinations made in Remmer-type hearings will frequently turn upon testimony of the juror in question, but errs in contending that such evidence is inherently suspect. As we said in Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519, 94 L.Ed. 734 (1950), '[o]ne may not know or altogether understand the imponderables which cause one to think what he thinks, but surely one who is trying as an honest man to live up to the sanctity of his oath is well qualified to say whether he has an unbiased mind in a certain matter.’ Id., at 171, 70 S.Ct., at 523. See also United States v. Reid, 12 How. 361, 366, 13 L.Ed. 1023 (1852). 455 U.S. at 217 n. 7, 102 S.Ct. at 946 n. 7. . We note that Fryar has been convicted of using Terracina's uncle to offer Terracina a $10,000 bribe. United States v. Fryar," }, { "docid": "18217388", "title": "", "text": "to overcome a presumption of prejudice where there is “any private communication, contact or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury.” 347 U.S. at 229, 74 S.Ct. at 451. In a hearing to determine whether contact with a juror was harmless, “the burden rests heavily upon the Government to establish ... that such contact with the juror was harmless to the defendant.” Id. The government and the Sixth Circuit maintain that Phillips overruled Remmer by holding that the remedy for allegations of juror partiality is a hearing “in which the defendant has the opportunity to prove actual bias.” 455 U.S. at 215, 102 S.Ct. at 945; Pennell, 737 F.2d at 532. But, the Supreme Court expressly upheld the Remmer -type burden of proof; it held that determinations of jury partiality “may properly be made at a hearing like that ordered in Remmer and held in this case.” 455 U.S. at 217, 102 S.Ct. at 946. Quite simply, the government (and the Sixth Circuit) misread the Phillips “opportunity to prove actual bias” as a shifting of the burden of proof to the defendant. Recent decisions from a number of circuits, and the Supreme Court’s reliance in Phillips on Remmer, point clearly to the continued vitality of the rule that the government must bear the burden of proof in showing that jury partiality was harmless. Owen v. Duckworth, 727 F.2d 643, 646 (7th Cir.1984) (once the defendant has proved the extrajudicial contact with the jury, the government has the burden of rebutting a presumption of prejudice); United States v. Delaney, 732 F.2d 639, 642 (8th Cir.1984) (burden on the government to rebut a presumption of prejudice); United States v. Hillard, 701 F.2d 1052, 1064 (2d Cir.), cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1318 (1983) (a presumption of prejudice can be rebutted only by a showing that the information the jury received was harmless); United States v. Weiss, 579 F.Supp. 1224, 1237 (S.D.N.Y.1983) (government must make an affirmative showing of harmlessness); see also United States v. Flaherty, 668 F.2d" }, { "docid": "18217389", "title": "", "text": "Phillips “opportunity to prove actual bias” as a shifting of the burden of proof to the defendant. Recent decisions from a number of circuits, and the Supreme Court’s reliance in Phillips on Remmer, point clearly to the continued vitality of the rule that the government must bear the burden of proof in showing that jury partiality was harmless. Owen v. Duckworth, 727 F.2d 643, 646 (7th Cir.1984) (once the defendant has proved the extrajudicial contact with the jury, the government has the burden of rebutting a presumption of prejudice); United States v. Delaney, 732 F.2d 639, 642 (8th Cir.1984) (burden on the government to rebut a presumption of prejudice); United States v. Hillard, 701 F.2d 1052, 1064 (2d Cir.), cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1318 (1983) (a presumption of prejudice can be rebutted only by a showing that the information the jury received was harmless); United States v. Weiss, 579 F.Supp. 1224, 1237 (S.D.N.Y.1983) (government must make an affirmative showing of harmlessness); see also United States v. Flaherty, 668 F.2d 566, 602 (1st Cir.1981) (heavy burden on the government to show no prejudice). The Phillips case, contrary to the Sixth Circuit’s analysis, did not confront the issue of burden or proof but rather concerned the necessity for a hearing on the issue of jury partiality. It was on that issue that the Court discussed the relevance of Remmer; its conclusion that the state hearing was constitutionally adequate did not even address the burden of proof issue. Phillips, 455 U.S. at 215-18, 102 S.Ct. at 944-46. In light of Phillips, therefore, we reject the government’s assertion that Gibson and Remmer are no longer good law. The government had an obligation here to prove beyond a reasonable doubt that the juror’s reading of the Time magazine article was harmless. Remmer, 347 U.S. at 229, 74 S.Ct. at 451; Gibson, 633 F.2d at 854-55. The court found that none of the jurors discussed the Time magazine article except for foreperson Graves and an unknown person. That finding incorrectly recalls the testimony. Juror Brown testified that there was a" }, { "docid": "22146157", "title": "", "text": "102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982); United States v. Armstrong, 654 F.2d 1328, 1332 (9th Cir. 1981), cert. denied, 454 U.S. 1157, 102 S.Ct. 1032, 71 L.Ed.2d 315 (1982); United States v. Almonte, 594 F.2d 261, 265-66 (1st Cir. 1979); United States v. Fleming, 594 F.2d 598, 608 (7th Cir.), cert. denied, 442 U.S. 931, 99 S.Ct. 2863, 61 L.Ed.2d 299 (1979). We hereby adopt the abuse of discretion standard of review. Finally, in contrast with this court’s opinions in Ferguson and Stone, the Supreme Court in Phillips stated that juror testimony at Remmer hearings, often the evidence upon which such hearings will turn, should not be regarded as “inherently suspect.” 455 U.S. at 217 n. 7, 102 S.Ct. at 946 n. 7. Indeed, the Court emphasized that “one who is trying as an honest man to live up to the sanctity of his oath is well qualified to say whether he has an unbiased mind in a certain matter.” Id.; cf. United States v. Blanton, 719 F.2d 815 (6th Cir.1983) (en banc) (juror self-evaluations during voir dire concerning whether pretrial publicity had resulted in opinions about guilt or innocence that could not be set aside). Even the dissent in Phillips recognized that juror testimony at a Remmer hearing involving unauthorized communications with outsiders is likely to be reliable because “a juror will be less reluctant to admit that he was disturbed or upset by the misconduct of a third party, than to admit that he himself acted improperly.” 455 U.S. at 236, 102 S.Ct. at 955 (Marshall, J., dissenting). Accordingly, we hold that if a district court views juror assurances of continued impartiality to be credible, the court may rely upon such assurances in deciding whether a defendant has satisfied the burden of proving actual prejudice. Pennell would distinguish Phillips on the basis that the decision involved a habeas corpus petition brought pursuant to 28 U.S.C. § 2254. The majority in Phillips did state: Of equal importance, this case is a federal habeas action in which Justice Birns’ findings are presumptively correct under 28 U.S.C. § 2254(d). 455" }, { "docid": "13983736", "title": "", "text": "723, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751 (1961). The burden of establishing harmlessness, which is placed on the government, is made less demanding by the trial judge’s participation and use of all the tools necessary to evaluate the relevant facts. C. In this instance we are unable to find error in the trial court’s conclusion that the juror contact was harmless. When informed of the contact, the judge immediately convened a hearing in the presence of opposing counsel, all of whom were given a chance to make suggestions on how to proceed. The affected juror was brought into the hearing and extensively questioned. The judge’s questioning fully revealed the details of the alleged exchange between the defendant and the juror. The nature of the contact was relatively innocuous; it did not provide the juror with any crucial extra-judicial information, and it did not constitute an attempt to bribe or intimidate the juror, which is the kind of contact that clearly could, in and of itself, prejudice the juror. Cf. United States v. Delaney, 732 F.2d 639, 641 (8th Cir.1984) (extra-judicial information); Owen v. Duckworth, 727 F.2d 643, 644 (7th Cir.1984) (threat). The judge specifically asked the juror if the contact would have any bearing on her ability to render a fair and impartial verdict, and she stated that it would not. Although some courts have doubted the reliability of juror responses to this kind of question, the Supreme Court has settled that such testimony is not “inherently suspect,” for a juror “ ‘is well qualified to say whether he has an unbiased mind in a certain matter.’ ” Phillips, 455 U.S. at 217 n. 7, 102 S.Ct. at 946 n. 7 (quoting Dennis v. United States, 339 U.S. 162, 171, 70 S.Ct. 519, 523, 94 L.Ed. 734 (1950)). These facts fully justify the trial judge’s ruling that the contact was harmless. The principal shortcoming of the trial judge’s handling of the matter was his failure to determine at the hearing whether the juror had discussed the incident with anyone else on the jury. The judge admonished her not to" }, { "docid": "8427582", "title": "", "text": "reviews a court’s handling of alleged juror misconduct only for abuse of discretion precisely because the district court is best situated to evaluate jurors’ credibility. See Panebianco, 543 F.2d at 457. Also, in weighing the competing accounts, the district court need not have credited the legal secretary’s inference that the jury desired a “conviction.” It is clear enough that poking Juror A to keep her awake might ensure that the trial culminates in a verdict, but it is much less clear how it would secure a conviction. A desire to obtain a conviction might suggest prejudice and misconduct, but a desire to reach a verdict is no more than a desire to fulfill the obligations of a juror. A lay person (like Juror A) may not appreciate the distinction between these terms. It is possible, indeed even likely, that Juror A confused them and misspoke. Moreover, as the district court noted, a court should generally presume that jurors are being honest. “[Ajbsent evidence to the contrary, we presume that jurors remain true to their oath and conscientiously observe the instructions and admonitions of the court.” United States v. Rosario, 111 F.3d 293, 300 (2d Cir.1997) (quoting United States v. Easter, 981 F.2d 1549, 1553 (10th Cir.1992)). As the Supreme Court observed in Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), “one who is trying as an honest man to live up to the sanctity of his oath is well qualified to say whether he has an unbiased mind in a certain matter.” Id. at 217 n. 7, 102 S.Ct. 940 (rejecting habeas petitioner’s argument that testimony of juror with alleged conflict of interest was “inherently suspect”) (quoting Dennis v. United States, 339 U.S. 162, 171, 70 S.Ct. 519, 94 L.Ed. 734 (1950)). The court did not abuse its discretion by accepting the jurors’ account. Because the court found properly that there had been no misconduct, defendants’ reliance on United States v. Resko, 3 F.3d 684 (3d Cir.1993), is misplaced. In Resko, the district court ascertained by questionnaire that all of the jurors had engaged in" } ]

[ { "docid": "3460059", "title": "", "text": "and their failure to incorporate it into their pleadings, it was reasonable for this Court to assume that plaintiffs would be unable to amend their complaint to include allegations of trader-based conduct that could survive a 12(b)(6) motion. Therefore, Panther Partners is not an appropriate basis for reconsideration of our denial of leave to amend in LIBOR II. Second, plaintiffs’ argument that we failed to consider LIBOR I in reaching our decision in LIBOR II is meritless. Putting aside the absurd notion that this Court failed to consider an opinion that we had written mere months prior, our analysis of plaintiffs’ claims has remained consistent: plaintiffs must plead actual damages to state a claim under the CEA. See 7 U.S.C. § 25(a)(1); LIBOR I, 935 F.Supp.2d at 714; LIBOR II, 962 F.Supp.2d at 620. Plaintiffs inexplicably fail to grasp, however, that claims based on defendants’ persistent suppression of LIBOR require different allegations to survive than do those based on day-to-day, trader-based manipulation. In the former scenario, we can assume LIBOR’s artificiality over a given time period, which in turn would necessarily impact the price of Eurodollar futures contracts purchased or sold in the relevant window. In the latter scenario, since LIBOR was allegedly artificial only for discrete days during the Class Period, by their own reckoning, plaintiffs may have transacted on many days when LIBOR was “true.” Moreover, because the manipulation was allegedly varying in direction, there may be some days when plaintiffs were actually helped, rather than harmed, by the alleged artificiality, depending on their position in the market. Thus, while plaintiffs’ damages are “plausible” based on a persistent suppression theory, even without allegations of specific transactions, damages are merely “conceivable” — and thus insufficiently pled — if LIBOR was allegedly being manipulated in different directions on different days and plaintiffs fail to provide details of their own positions in the market. Twombly, 550 U.S. at 570, 127 S.Ct. 1955 (2007). Notwithstanding plaintiffs’ contentions to the contrary, in LIBOR II, we imposed the same requirement for plausible allegations of actual damages as we did in LIBOR I. Plaintiffs twice" } ]

[ { "docid": "10154677", "title": "", "text": "The CAC further alleges that “pricing relationships between different U.S. physical natural gas hubs are closely and inextricably linked.” CAC ¶ 4. Thus, the plaintiffs argue; “short-term spot market dynamics, particularly significant price movements at such regional hubs, will inevitably affect pricing of Henry Hub futures contracts.” Id. Next, using a purported expert analyzing pricing data from particular regional hubs and the NYMEX, the plaintiffs allege that manipulation of prices at the regional hubs had the effect of “artificially influencing [either] the Henry Hub spot prices or NYMEX natural gas futures” prices. Id. ¶ 254. Thus, the plaintiffs conclude that the value of the instruments they purchased was affected by the defendants’ alleged manipulation of physical natural gas index prices at the regional hubs. That combination of allegations does not “nudge[ ] [the plaintiffs’] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. The CAC is replete with' allegations that the defendants “manipulated monthly index settlement prices of natural gas” at the four regional hubs. CAC ¶ 1. That is the conduct which formed the basis of investigations by the FERC and CFTC. But none of the plaintiffs allege that they purchased any financial instruments—or any physical natural gas—whose prices were based on or directly tied to monthly index prices at those hubs. See CAC ¶¶ 18-23 (describing the plaintiffs’ transactions). The plaintiffs attempt to make up for the fact that they did not purchase any financial or physical products tied to index prices at the regional hubs by alleging that “pricing relationships between different U.S. physical natural gas hubs are closely and inextricably linked” such that manipulation of prices at the regional hubs “will inevitably affect pricing” of financial instruments tied to prices at the Henry Hub. CAC ¶ 4. Those allegations do not support a plausible inference that the plaintiffs suffered an actual economic injury as a result of the defendants’ .alleged manipulation. The plaintiffs have not alleged any facts to support the conclusion that the defendants’ manipulation of prices at the four regional hubs had an impact on Henry Hub" }, { "docid": "10154689", "title": "", "text": "Instead, the court pointed out that “[u]n-der the CEA, actionable manipulation must be directed at ‘the price of the commodity underlying such contract.’” Id. (quoting 7 U.S.C. § 25(a)(1)(D)). Thus, the court concluded, the plaintiffs “must allege that Defendants specifically intended, to manipulate the underlying of that contract,” in other words, “the spot price at the Henry Hub.” Id. A plain reading of the CEA requires the plaintiffs to allege intentional'manipulation of the commodity underlying the individual contracts for which the plaintiffs claim damages. The plaintiffs have failed to do so. As the Fifth Circuit Court of Appeals plainly put it: “[I]ntentionality and inevitability are not legally equivalent.” Id. at 248. The CAC does not allege facts that would allow a plausible inference that the defendants acted “with the purpose or conscious object of’ manipulating prices at the Henry Hub. Silver Futures-, 560 Fed.Appx. at 87. The clear purpose of the defendants’ allegedly manipulative trading was to affect index prices for physical natural gas at the individual regional hubs in ways “that were intended to benefit TGPNA’s related financial positions,” CAC ¶ 73. . The plaintiffs argue, relying on LIBOR H, that they have adequately pleaded intent by alleging that the defendants acted “with reckless disregard for the potential impact of their trading on natural gas prices” generally, such that their manipulation was not only directed at the [regional] hubs, but also at the Henry Hub.” CAC ¶251. íhose allegations are insufficient and implausible. The court in LIBOR II concluded that the plaintiffs had adequately pleaded scienter through “conscious misbehavior or recklessness” because they had adequately pleaded “that the ‘danger’ of submitting artificial LIBOR quotes—’the manipulation of the price of Eurodollar futures contracts—was either known to the defendant banks or ,so obvious that théy must have been aware of it.” 27 F.Supp.3d at 469, 470. In other words, the plaintiffs plausibly alleged that the defendants knew or recklessly disregarded that submitting false LIBOR quotes would result in manipulation of prices of the Eurodollar futures contracts purchased by the, plaintiffs, which are priced with reference to LIBOR. Id. at 470. As" }, { "docid": "10154684", "title": "", "text": "at 53 (plaintiffs “transacted in interest rate derivatives expressly tied to” “or directly impacted by” alleged manipulation of the ISDAfix rate); ForEx II, 2016 WL 5108131, at *21 (plaintiffs purchased FX futures contracts “based on and derived arithmetically from spot prices” alleged to have been manipulated). Moreover, the plaintiffs in Alaska Electrical appended to their complaint a list of nearly 2,000 specific transactions alleged to have been harmed by the defendants’ manipulation. See Alaska Elec., 14-cv-7126, ECF No. 164 Ex. 2 (S.D.N.Y. Feb. 12, 2015). In this case the plaintiffs have access to all the information they need to allege which transactions they engaged in that resulted in economic harm. They have their own trading records, the precise trades that are alleged to have been made in an attempt to manipulate prices at particular regional hubs, and the natural gas futures pricing information over the relevant time period. The plaintiffs’ failure to allege a single specific transaction that lost value as a result of the defendants’ alleged misconduct precludes a plausible allegation of actual injury. See LIBOR I, 962 F.Supp.2d at 620-21 (plaintiffs failed plausibly to allege economic injury where they failed to identify specific financial positions that lost value “despite the fact that plaintiffs indisputably have access to their own Eurodollar futures contract trading records”); cf. ForEx II, 2016 WL 5108131, at *20 (concluding that “because Plaintiffs lack information to identify the specific transactions on which they were injured, they need not plead them in order to state a CEA claim”). The failure to include any specific transactions is fatal'here because the alleged manipulation was “varying in direction” compared to prices' at Henry Hub. In re LIBOR-Based Fin. Instruments Antitrust Litig. (“LIBOR II”), 27 F.Supp.3d 447, 461 (S.D.N.Y. 2014). Thus, “there may be some days when plaintiffs were actually helped, rather than harmed, by the alleged artificiality, depending on their.position in the market.” Id. Thus, if Henry Hub (and thus NYMEX) prices were allegedly “being manipulated in different directions on different days and plaintiffs fail to provide details of their own positions in the market,” their alleged damages are" }, { "docid": "10154686", "title": "", "text": "“merely ‘conceivable’—and thus insufficiently pled.” LIBOR II, 27 F.Supp.3d at 461 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). The plaintiffs have therefore failed to allege plausibly that they have suffered “actual damages,” and their claims in Counts One and Two of the CAC must be dismissed. LIBOR I, 962 F.Supp.2d at 620 (quoting 7 U.S.C. § 25(a)(1)). Moreover, because the plaintiffs failed to state a claim under the CEA in Counts One and Two of the CAC, their claims for aiding and abetting and principal-agent liability, Counts Three and Four, also fail. See 7 U.S.C. § 2(a)(1)(B); In re Platinum and Palladium Commodities Litig., 828 F.Supp.2d 588, 599 (S.D.N.Y. 2011). In sum, Counts One through Four must be dismissed because the plaintiffs have not plausibly alleged actual damages and thus cannot state a claim for manipulation under the CEA. B. The CEA claims must also be dismissed because the CAC fails to allege plausibly that TGPNA “specifically intended to cause the artificial price” of physical or financial instruments purchased by the plaintiffs. Amaranth III, 730 F.3d at 173 (quotation marks omitted). “The CEA provides a private right of action against individuals ‘who purchased or sold a [futures] contract’ if those individuals ‘manipulated] the price of any such contract or the price of the commodity underlying such contract.’ ” Hershey v. Energy Transfer Partners, L.P., 610 F.3d 239, 246 (5th Cir. 2010) (quoting 7 U.S.C. § 25(a)(1)(D)). Thus, to state a claim under the CEA the plaintiffs must plausibly allege that the defendants specifically intended to manipulate the price of the commodity underlying the contracts they entered into. See Amaranth III, 730 F.3d at 183 (“Plaintiffs-Appellants were required to allege that ... Amaranth specifically intended to manipulate the price of NYMEX natural gas futures.”). The plaintiffs argue that the “commodity underlying” the contracts the plaintiffs purchased is natural gas generally, and that it is therefore unnecessary to allege that the defendants intended to manipulate the price of physical natural gas at the Henry Hub or of derivatives contracts tied to the Henry Hub. Plaintiffs’ Mem. in Opp. to Mot." }, { "docid": "3460058", "title": "", "text": "own decision in LI-BOR I. For the reasons stated below, we reject these arguments and deny plaintiffs’ motion for reconsideration. First, plaintiffs’ reliance on Panther Partners is misplaced. Panther Partners has been interpreted not “as an intervening change in the controlling law justifying reconsideration of the denial of leave to amend,” but rather as an “affirm[ation] [of] the familiar rule that a district court always has discretion to grant leave to amend.... ” In re CRM Holdings, 2013 WL 787970, at *8 (citations and internal quotation marks omitted). Indeed, Panther Partners reiterates that “[gjranting leave to amend is futile if it appears that plaintiff cannot address the deficiencies identified by the court and allege facts sufficient to support the claim.” Panther Partners, 347 Fed.Appx. at 622. As we stated in LIBOR II, “despite the fact that plaintiffs indisputably have access to their own Eurodollar futures contract trading records, the [Proposed Second Amended Complaint] [was] devoid of any references to particular Eurodollar contracts.” LIBOR II, 962 F.Supp.2d at 621. Given plaintiffs’ access to this necessary information and their failure to incorporate it into their pleadings, it was reasonable for this Court to assume that plaintiffs would be unable to amend their complaint to include allegations of trader-based conduct that could survive a 12(b)(6) motion. Therefore, Panther Partners is not an appropriate basis for reconsideration of our denial of leave to amend in LIBOR II. Second, plaintiffs’ argument that we failed to consider LIBOR I in reaching our decision in LIBOR II is meritless. Putting aside the absurd notion that this Court failed to consider an opinion that we had written mere months prior, our analysis of plaintiffs’ claims has remained consistent: plaintiffs must plead actual damages to state a claim under the CEA. See 7 U.S.C. § 25(a)(1); LIBOR I, 935 F.Supp.2d at 714; LIBOR II, 962 F.Supp.2d at 620. Plaintiffs inexplicably fail to grasp, however, that claims based on defendants’ persistent suppression of LIBOR require different allegations to survive than do those based on day-to-day, trader-based manipulation. In the former scenario, we can assume LIBOR’s artificiality over a given time" }, { "docid": "10154682", "title": "", "text": "“regional market conditions and available transmission capacity between hubs.” CAC ¶ 45. The defendants are alleged to have made 1,182 manipulative trades across four regional hubs over a period of three years. FERC R & R p. 95 n.440. Those trades are alleged to have been made in an attempt to affect index prices at the regional hubs in different directions over different periods of time. See FERC R & R pp. 38-51 (describing examples of attempts to manipulate prices). By comparison, although the plaintiffs do not specify how many physical fixed price trades were made at the Henry Hub during the Class Period, they do acknowledge that “Henry Hub is the most liquid and active of the physical and futures markets,” CAC ¶3. The plaintiffs’ own submissions also show that there were approximately 36 million NYMEX futures contracts traded during the Class Period. Id. § 255. The plaintiffs do not offer any plausible theory under which the instruments they purchased— whose prices were based on the price of natural gas at Henry Hub—could have been affected by those 1,182 trades under these circumstances. Moreover, the plaintiffs’ allegation of damages fails because they “have failed to allege actual losses on any specific transactions.” Braman v. The CME Grp., Inc., 149 F.Supp.3d 874, 892 (N.D. Ill. 2015), The plaintiffs insist that they need not reference specific transactions because, at the pleading stage, injury may be presumed when prices are alleged to have been artificially manipulated. But the cases on which the plaintiffs rely do not suggest that they have sufficiently alleged damages in this ease. In each case that the plaintiffs rely upon, the allegations of damages were based on direct manipulation of the price of the instruments that the plaintiffs transacted in, or of the price of the commodity or index underlying those instruments. See In re Amaranth Natural Gas Commodities Litigation, (‘Amaranth II‘), 269 F.R.D. at 373, 380 (S.D.N.Y. 2010) (injury could be presumed where plaintiffs transacted in NYMEX natural gas futures contracts whose prices were allegedly manipulated by the defendants’ trades of such contracts); Alaska Elec., 175 F.Supp.3d" }, { "docid": "10154683", "title": "", "text": "been affected by those 1,182 trades under these circumstances. Moreover, the plaintiffs’ allegation of damages fails because they “have failed to allege actual losses on any specific transactions.” Braman v. The CME Grp., Inc., 149 F.Supp.3d 874, 892 (N.D. Ill. 2015), The plaintiffs insist that they need not reference specific transactions because, at the pleading stage, injury may be presumed when prices are alleged to have been artificially manipulated. But the cases on which the plaintiffs rely do not suggest that they have sufficiently alleged damages in this ease. In each case that the plaintiffs rely upon, the allegations of damages were based on direct manipulation of the price of the instruments that the plaintiffs transacted in, or of the price of the commodity or index underlying those instruments. See In re Amaranth Natural Gas Commodities Litigation, (‘Amaranth II‘), 269 F.R.D. at 373, 380 (S.D.N.Y. 2010) (injury could be presumed where plaintiffs transacted in NYMEX natural gas futures contracts whose prices were allegedly manipulated by the defendants’ trades of such contracts); Alaska Elec., 175 F.Supp.3d at 53 (plaintiffs “transacted in interest rate derivatives expressly tied to” “or directly impacted by” alleged manipulation of the ISDAfix rate); ForEx II, 2016 WL 5108131, at *21 (plaintiffs purchased FX futures contracts “based on and derived arithmetically from spot prices” alleged to have been manipulated). Moreover, the plaintiffs in Alaska Electrical appended to their complaint a list of nearly 2,000 specific transactions alleged to have been harmed by the defendants’ manipulation. See Alaska Elec., 14-cv-7126, ECF No. 164 Ex. 2 (S.D.N.Y. Feb. 12, 2015). In this case the plaintiffs have access to all the information they need to allege which transactions they engaged in that resulted in economic harm. They have their own trading records, the precise trades that are alleged to have been made in an attempt to manipulate prices at particular regional hubs, and the natural gas futures pricing information over the relevant time period. The plaintiffs’ failure to allege a single specific transaction that lost value as a result of the defendants’ alleged misconduct precludes a plausible allegation of actual injury." }, { "docid": "12291605", "title": "", "text": "alleged ... manipulative conduct, and that the artificiality was adverse to their position.” Id. at 622. The Fixing Banks argue that Plaintiffs lack CEA standing because Plaintiffs fail to allege that they “engaged in a transaction at a time during which prices were artificial.” Defs.’ Mem. at 48 (citing LIBOR II, 962 F.Supp.2d at 622 (emphasis added)). But Plaintiffs allege that the effects of Defendants’ manipulation persisted beyond the PM Fixing window. SAC ¶ 222 & chart. While Plaintiffs’ allegations of “persistence” are potentially in tension with their allegations that the PM Fixing marked a uniquely dysfunctional period of the trading day, they are not necessarily incompatible. Viewing the allegations in the light most favorable to Plaintiffs, the Court could find that Plaintiffs have adequately alleged that, on days on which Defendants engaged in manipulation, the Fixing marked an abrupt downward aberration in pricing, which abated gradually, but perhaps not completely, over time. Under such circumstances, allegations that Plaintiffs sold gold futures on specifically identified dates on which Defendants are alleged to have artificially suppressed the Fix Price are sufficient for CEA standing purposes. Compare In re Amaranth Natural Gas Commodities Litig., 269 F.R.D. 366, 379-80 (S.D.N.Y. 2010) (in the context of CEA class certification, “case law suggests that because plaintiffs transacted at artificial prices, injury may be presumed”) with LIBOR II, 962 F.Supp.2d at 620-21 (no standing where Plaintiffs failed plausibly to allege that they transacted on days on which prices were artificial or that the alleged artificiality was adverse to their positions). VI. Plaintiffs Adequately Allege Price Manipulation Plaintiffs assert claims under CEA Sections 9(a)(2) and 6(c)(3), 7 U.S.C. §§ 9(3), 13(a)(2), and CFTC Rule 180.2, which makes it unlawful for “any person to manipulate or attempt to manipulate the price of any commodity in interstate commerce.” Although manipulation claims that sound in fraud are evaluated under the more stringent pleading requirements of Fed. R. Civ. P. 9(b), In re Amaranth Nat. Gas Commodities Litig., 730 F.3d 170, 180-81 (2d Cir. 2013), courts in this District have generally found that “fraud is not a necessary element of a" }, { "docid": "10154690", "title": "", "text": "benefit TGPNA’s related financial positions,” CAC ¶ 73. . The plaintiffs argue, relying on LIBOR H, that they have adequately pleaded intent by alleging that the defendants acted “with reckless disregard for the potential impact of their trading on natural gas prices” generally, such that their manipulation was not only directed at the [regional] hubs, but also at the Henry Hub.” CAC ¶251. íhose allegations are insufficient and implausible. The court in LIBOR II concluded that the plaintiffs had adequately pleaded scienter through “conscious misbehavior or recklessness” because they had adequately pleaded “that the ‘danger’ of submitting artificial LIBOR quotes—’the manipulation of the price of Eurodollar futures contracts—was either known to the defendant banks or ,so obvious that théy must have been aware of it.” 27 F.Supp.3d at 469, 470. In other words, the plaintiffs plausibly alleged that the defendants knew or recklessly disregarded that submitting false LIBOR quotes would result in manipulation of prices of the Eurodollar futures contracts purchased by the, plaintiffs, which are priced with reference to LIBOR. Id. at 470. As discussed above, the plaintiffs have not plausibly alleged that such a “danger” existed here—that is, that manipulative trading on the regional hubs would lead to the manipulation of the price of natural ■ gas futures contracts priced with reference to Henry Hub—let alone, that such a danger .was “either known to the [defendants] or so obvious that they must have been aware of it.” Id. Notably, neither the FERC R & R nor the CFTC Order—from which the • plaintiffs have lifted their factual allegations nearly verbatim'—include any allegation that the defendants sought to influence prices at the Henry. Hub, or that the risk of such influence was “so obvious that they must have been aware of it.” Id. Because the defendants’ alleged intent to manipulate index prices at the regional hubs cannot support a plausible allegation of intent to manipulate the price of the commodity underlying the instruments actually purchased by the plaintiffs—natural gas at the Henry Hub and derivatives based on that commodity—Counts One through Pour must be dismissed on this basis as" }, { "docid": "3460074", "title": "", "text": "A. Procedural Background In LIBOR I, we found that the exchange-based plaintiffs “adequately alleged that defendants manipulated the price of Eurodollar contracts and that this manipulation caused [plaintiffs] actual damages.” LIBOR I, 935 F.Supp.2d at 719. To reach this conclusion, we applied the Second Circuit’s four-part test for pleading manipulation under the CEA: a plaintiff must show “(1) that [defendant] had the ability to influence market prices; (2) that [he] specifically intended to do so; (3) that artificial prices existed; and (4) that [defendant] caused the artificial prices.” DiPlacido v. Commodity Futures Trading Comm’n, 364 Fed.Appx. 657, 661 (2d Cir.2009) (citation omitted). With regard to the second element — scienter—we determined that “plaintiffs plausibly allege[d] that defendants specifically intended to manipulate the price of Eurodollar futures contracts,” as they were in a position to gain “concrete benefits” from the manipulation. LIBOR I, 935 F.Supp.2d at 715. Further evidence of these potential concrete benefits emerged from the Barclays settlement documents, the contents of which “do not describe merely a generalized interest in appearing profitable, but rather identify concrete economic benefits that defendants stood to gain from manipulating the price of Eurodollar futures contracts.” Id. Thus, based on plaintiffs’ “showing that the defendants had both motive and opportunity” to manipulate the prices of Eurodollar futures contracts, we found that the scienter element of the manipulation test was satisfied. Id. In LIBOR II, defendants moved for reconsideration of our holding that plaintiffs had adequately pled scienter, and the authority that defendants cited “rais[ed] serious questions] regarding whether plaintiffs’ allegations [were]' sufficient.” LIBOR II, 962 F.Supp.2d at 616. In particular, we expressed concerns about plaintiffs’ argument that motive, for scien-ter purposes, could be established at the pleadings stage based on defendants’ holding significant positions in the Eurodollar futures market. Id. at 616-17 (citing In re Commodity Exch., Inc., Silver Futures & Options Trading Litig., No. 11 Md. 2213(RPP), 2012 WL 6700236 (S.D.N.Y. Dec. 21, 2012) (“Silver Futures /”); Crude Oil I, 2007 WL 1946553). Furthermore, we rearticulated our view that we did not “accept the notion that intentionally submitting false LIBOR quotes is tantamount" }, { "docid": "6568838", "title": "", "text": "of Eurodollar futures contracts. Plaintiffs have failed to meet this burden. In the PSAC, plaintiffs do not include any allegations that make plausible (1) that they transacted in Eurodollar futures contracts on days on which Eurodol lar futures contract prices were artificial as a result of trader-based manipulation of LIBOR, or (2) that their positions were such that they were injured. Cf. In re Energy Transfer Partners Natural Gas Litig., No. 4:07-cv-3349, 2009 WL 2633781 (S.D.Tex. Aug. 26, 2009) (requiring plaintiffs, in order to allege actual damages under the CEA, to ghow an overlap between the time period during which the manipulation occurred and the period during which plaintiffs traded their contracts). Indeed, despite the fact that plaintiffs indisputably have access to their own Eurodollar futures contract trading records, the PSAC is devoid of any references to particular Eurodollar contracts. See Tr. 38-41, 45. Rather than plead with such specificity, plaintiffs have simply alleged that each of the named plaintiffs “traded on-exchange based products tied to LIBOR such as Eurodollar futures” during the Class Period, Exchange-Based Pis.’ PSAC ¶¶ 20-27, and that the members of the proposed class “transacted in Eurodollar futures and options on Eurodollar futures on exchanges such as the CME [during the Class Period] and were harmed by Defendants’ manipulation of LIBOR,” id. ¶ 502. However, because the alleged trader-based manipulation did not occur on every day of the Class Period,' but rather on only a subset of those days — a subset that plaintiffs can, at least in part, identify — and because the alleged manipulation on any given day went in a particular direction — a direction which, again, plaintiffs can, at least in párt, identify — and thus would have harmed only those entities with certain positions, the broad allegations plaintiffs have offered are insufficient to allege actual damages. To elucidate this point, we can contrast plaintiffs’ persistent suppression theory, where we found plaintiffs’ pleading sufficient, with their trader-based manipulation theory, where we do not. In evaluating the persistent suppression allegations in plaintiffs’ first amended complaint, we did not require plaintiffs to allege the" }, { "docid": "10154674", "title": "", "text": "2 of the Sherman Act, 15 U.S.C. § 2. CAC ¶ 344. The CAC alleges that the defendants reported “excessive trading volumes of uneconomic trades and maintained an excessively high market share during bidweek” at the four regional hubs, “which impacted and controlled the reported monthly index settlement prices” at those hubs. Id. ¶ 346. The CAC further alleges that the plaintiffs— who traded natural gas derivatives “whose prices were inextricably linked to the price of natural gas” at the four regional hubs— “were deprived of normal, competitive trading patterns” and suffered financial losses as a consequence. Id. ¶ 351. The plaintiffs seek treble damages under § 4 of the Clayton Act, 15 U.S.C. § 15, as well as punitive and actual damages, costs, and fees. III. A. The defendants move to dismiss the CEA claims, Counts One through Four, for failure plausibly to allege damages. “The CEA prohibits any person from ‘manipulating] or attempting] to manipulate the price of any commodity.’” In re Commodity Exchange, Inc. Silver Futures and Options Trading Litig. (“Silver Futures”) 560 Fed.Appx. 84, 86 (2d Cir. 2014) (summary order) (quoting 7 U.S.C. § 13(a)(2)). “While the CEA itself does not define the term, a court will find manipulation where (1) Defendants possessed an ability to influence market prices; (2) an artificial price existed; (3) Defendants caused the artificial prices; and (4) Defendants specifically intended to cause the artificial price.” In re Amaranth Natural Gas Commodities Litig., (“Amaranth III”) 730 F.3d 170, 173 (2d Cir. 2013) (quotation marks omitted). In order to avoid dismissal, the plaintiffs “not only must allege the elements of a commodities manipulation claim, but also must show that they have standing to sue.” In re LIBOR-based Fin. Instruments Antitrust Litig. (“LIBOR I”), 962 F.Supp.2d 606, 620 (S.D.N.Y. 2013). “Under section 22(a) of the CEA, a plaintiff has standing to bring a commodities manipulation action only if he has suffered ‘actual damages’ as a result of defendant’s manipulation.” Id (quoting 7 U.S.C. § 25(a)(1)). “The term ‘actual damages’ has been applied by courts in a straightforward manner to require a showing of actu" }, { "docid": "3460054", "title": "", "text": "prior to the start of the Class Period (pre-August 2007) were not time barred, whereas those based on contracts purchased after August 2007 were likely time barred, since those plaintiffs were on inquiry notice of their injury by May 29, 2008. Id. On May 23, 2013, plaintiffs filed their motion for leave to amend their complaint to include claims based on day-to-day manipulation. We addressed this motion in LIBOR II, finding that plaintiffs’ proposed amendments failed to “adequately allege[ ] that they suffered an injury as a result of defendants’ alleged trader-based conduct, and thus plaintiffs lack[ed] standing under the CEA to pursue such claims.” LIBOR II, 962 F.Supp.2d at 619. We also found that “although loss causation is not an element of a commodities manipulation claim, private plaintiffs must still plead actual damages in order to have standing to bring suit under the CEA,” a requirement that plaintiffs in this case had not met. Id. at 619 n. 16. In contrast to the persistent suppression claims, the trader-based claims alleged that LIBOR was manipulated in a way that was “episodic and varying in direction.” Id. at 620. Plaintiffs therefore needed to plead that they suffered actual damages by plausibly alleging “(1) that they transacted in Eurodollar futures contracts on days on which Eurodollar futures contract prices were artificial as a'result of trader-based manipulation of LIBOR, [and] (2) that their positions were such that they were injured.” Id. at 620-21. Instead, plaintiffs only offered “broad allegations” that were “insufficient to allege actual damages.” Id. at 621. Consequently, plaintiffs’ motion for leave to amend their complaint to add allegations of trader-based manipulation of Eurodollar futures contracts was denied. Plaintiffs then made two further motions. The first, filed on September 6, 2013, was a motion for reconsideration of “that portion of [LIBOR II] denying Exchange-Based Plaintiffs’ motion to [amend their complaint] to include allegations based on trader-based manipulation during the period January 1, 2005 through the beginning of August 2007.” Pis.’ Notice of Mot. for Reeons. of the Court’s Aug. 23, 2013 Mem. & Order at 1. The second, filed on September" }, { "docid": "10154685", "title": "", "text": "See LIBOR I, 962 F.Supp.2d at 620-21 (plaintiffs failed plausibly to allege economic injury where they failed to identify specific financial positions that lost value “despite the fact that plaintiffs indisputably have access to their own Eurodollar futures contract trading records”); cf. ForEx II, 2016 WL 5108131, at *20 (concluding that “because Plaintiffs lack information to identify the specific transactions on which they were injured, they need not plead them in order to state a CEA claim”). The failure to include any specific transactions is fatal'here because the alleged manipulation was “varying in direction” compared to prices' at Henry Hub. In re LIBOR-Based Fin. Instruments Antitrust Litig. (“LIBOR II”), 27 F.Supp.3d 447, 461 (S.D.N.Y. 2014). Thus, “there may be some days when plaintiffs were actually helped, rather than harmed, by the alleged artificiality, depending on their.position in the market.” Id. Thus, if Henry Hub (and thus NYMEX) prices were allegedly “being manipulated in different directions on different days and plaintiffs fail to provide details of their own positions in the market,” their alleged damages are “merely ‘conceivable’—and thus insufficiently pled.” LIBOR II, 27 F.Supp.3d at 461 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). The plaintiffs have therefore failed to allege plausibly that they have suffered “actual damages,” and their claims in Counts One and Two of the CAC must be dismissed. LIBOR I, 962 F.Supp.2d at 620 (quoting 7 U.S.C. § 25(a)(1)). Moreover, because the plaintiffs failed to state a claim under the CEA in Counts One and Two of the CAC, their claims for aiding and abetting and principal-agent liability, Counts Three and Four, also fail. See 7 U.S.C. § 2(a)(1)(B); In re Platinum and Palladium Commodities Litig., 828 F.Supp.2d 588, 599 (S.D.N.Y. 2011). In sum, Counts One through Four must be dismissed because the plaintiffs have not plausibly alleged actual damages and thus cannot state a claim for manipulation under the CEA. B. The CEA claims must also be dismissed because the CAC fails to allege plausibly that TGPNA “specifically intended to cause the artificial price” of physical or financial instruments purchased by the plaintiffs. Amaranth" }, { "docid": "12291604", "title": "", "text": "551 U.S. 877, 886, 127 S.Ct. 2705, 168 L.Ed.2d 623 (2007)). The Fixing Banks’ Motion to Dismiss Plaintiffs’ antitrust claims is, therefore, denied with respect to Plaintiffs’ claim for conspiracy in restraint of trade from 2006 through 2012 and otherwise granted with respect to the balance of the Class Period. V. Plaintiffs Have Standing to Assert CEA Claims Under section 22(a) of the CEA, a plaintiff has standing to bring a commodities manipulation action only if he or she suffered “actual damages” as a result of a defendant’s manipulation. 7 U.S.C. § 25(a)(1). To establish “actual damages” a plaintiff must show an “actual injury caused by the violation,” LIBOR II, 962 F.Supp.2d at 620 (quoting Ping He (Hai Nam) Co. v. NonFerrous Metals (U.S.A.) Inc., 22 F.Supp.2d 94, 107 (S.D.N.Y. 1998), vacated on other grounds, 187 F.R.D. 121 (S.D.N.Y. 1999)). Where, as here, CEA claims are based on discrete, episodic instances of manipulation, plaintiffs must allege that they “engaged in a transaction at a time during which prices were artificial as a result of defendants’ alleged ... manipulative conduct, and that the artificiality was adverse to their position.” Id. at 622. The Fixing Banks argue that Plaintiffs lack CEA standing because Plaintiffs fail to allege that they “engaged in a transaction at a time during which prices were artificial.” Defs.’ Mem. at 48 (citing LIBOR II, 962 F.Supp.2d at 622 (emphasis added)). But Plaintiffs allege that the effects of Defendants’ manipulation persisted beyond the PM Fixing window. SAC ¶ 222 & chart. While Plaintiffs’ allegations of “persistence” are potentially in tension with their allegations that the PM Fixing marked a uniquely dysfunctional period of the trading day, they are not necessarily incompatible. Viewing the allegations in the light most favorable to Plaintiffs, the Court could find that Plaintiffs have adequately alleged that, on days on which Defendants engaged in manipulation, the Fixing marked an abrupt downward aberration in pricing, which abated gradually, but perhaps not completely, over time. Under such circumstances, allegations that Plaintiffs sold gold futures on specifically identified dates on which Defendants are alleged to have artificially suppressed" }, { "docid": "10154711", "title": "", "text": "sufficient to establish Article III standing to assert violations of the CEA. , At oral argument the plaintiffs argued that the allegations in tire complaint of \"persistent manipulation” are similar to the LIBOR plaintiffs' allegations of \"persistent suppression of LIBOR” for which the court did not require an identification of specific transactions. LIBOR II, 27 F.Supp.3d at 460. Although the CAC alleges multiple instances of manipulation over a period of several years, the actual instances of manipulation are alleged to have been episodic, in that they occurred prior to and during particular bid-weeks at particular regional hubs, and \"varying in direction,” in that they were allegedly intended to affect prices in various directions for the benefit of specific financial instruments that TGPNA held. It is precisely those sorts of allegations that the court in LIBOR II held must be accompanied by references to particular trades in order \"to provide details of [the plaintiffs’] own positions in the market” sufficient to give rise to an inference of economic injury. Id at 461. . By contrast, a defendant in In re Natural Gas Commodity Litig., (\"Natural Gas I”), 337 F.Supp.2d 498 (S.D.N.Y, 2004) was alleged to have engaged in manipulation of prices at a regional hub by. \"churning” in order to increase the price of gas at that hub. 337 F.Supp.2d at 521. Moreover, the court there was not analyzing whether the complaint plausibly alleged damages, but rather whether the plaintiffs could bring any \"churning” claim at all in light of the fact that the FERC had determined that such behavior was not unlawful. Id at 521-22. The court concluded that dismissing the CEA claim \"would effectively amount to uncritically endorsing the FERC’s interpretation of the statute or giving its proceedings res judicata effect.” Id. at 523. . Although failure to allege damages has been characterized as an issue of statutory standing, \"[t]he Supreme Court has recently clarified ... that what has been called 'statutory standing' in fact is not a standing issue, but simply a question of whether the particular plaintiff 'has a cause of action under the statute.' ” Am." }, { "docid": "10154675", "title": "", "text": "560 Fed.Appx. 84, 86 (2d Cir. 2014) (summary order) (quoting 7 U.S.C. § 13(a)(2)). “While the CEA itself does not define the term, a court will find manipulation where (1) Defendants possessed an ability to influence market prices; (2) an artificial price existed; (3) Defendants caused the artificial prices; and (4) Defendants specifically intended to cause the artificial price.” In re Amaranth Natural Gas Commodities Litig., (“Amaranth III”) 730 F.3d 170, 173 (2d Cir. 2013) (quotation marks omitted). In order to avoid dismissal, the plaintiffs “not only must allege the elements of a commodities manipulation claim, but also must show that they have standing to sue.” In re LIBOR-based Fin. Instruments Antitrust Litig. (“LIBOR I”), 962 F.Supp.2d 606, 620 (S.D.N.Y. 2013). “Under section 22(a) of the CEA, a plaintiff has standing to bring a commodities manipulation action only if he has suffered ‘actual damages’ as a result of defendant’s manipulation.” Id (quoting 7 U.S.C. § 25(a)(1)). “The term ‘actual damages’ has been applied by courts in a straightforward manner to require a showing of actu al injury caused by the violation.” Id. (quotation marks omitted). The CAC does not plead facts' that would allow the Court to draw a reasonable inference that the plaintiffs suffered any economic injury as a result of the defendants’ alleged manipulation of monthly index prices of physical natural gas at the regional hubs. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. The plaintiffs’ theory of damages is as follows: The defendants “manipulated monthly index settlement prices of [physical] natural gas” at the four regional hubs. CAC ¶ 1. According to the allegations in the FERC R & R on which the plaintiffs rely, the defendants engaged in 1,182 trades that are alleged to have been made in an attempt to manipulate index prices at those four hubs. FERC R & R p. 95 n.440. The plaintiffs transacted in instruments priced not with reference to the index prices at those regional hubs, but rather with reference to “NY-MEX prices or other instruments tied to the Henry Hub.” Plaintiffs’ Mem. in Opp, to Mot. p. 14." }, { "docid": "10154710", "title": "", "text": "a valid cause of action,” Alaska Elec., 175 F.Supp.3d at 53 (quoting Ross v. Bank of America, N.A. (USA), 524 F.3d 217, 222 (2d Cir. 2008)). Thus, in some cases, allegations regarding economic injury may require dismissal under Rule 12(b)(6) but nevertheless be adequate to assert Article III standing: See id. But in this case, the plaintiffs have failed even to identify the transactions which allegedly resulted in economic loss. Cf id. (plaintiffs appended to the complaint a list of every transaction for which they alleged an economic loss). They have not alleged that they \"paid more than [they] should have (or [were] paid less than [they] should have been) under the terms of a particular transaction” despite having access to the records of all their transactions, and thus have not alleged that the manipulation of prices at the regional hub \"plausibly caused each Plaintiff to suffer some loss under the terms of some derivative at some point” during the Class Period. Id. The plaintiffs have therefore also failed to allege an injury in fact sufficient to establish Article III standing to assert violations of the CEA. , At oral argument the plaintiffs argued that the allegations in tire complaint of \"persistent manipulation” are similar to the LIBOR plaintiffs' allegations of \"persistent suppression of LIBOR” for which the court did not require an identification of specific transactions. LIBOR II, 27 F.Supp.3d at 460. Although the CAC alleges multiple instances of manipulation over a period of several years, the actual instances of manipulation are alleged to have been episodic, in that they occurred prior to and during particular bid-weeks at particular regional hubs, and \"varying in direction,” in that they were allegedly intended to affect prices in various directions for the benefit of specific financial instruments that TGPNA held. It is precisely those sorts of allegations that the court in LIBOR II held must be accompanied by references to particular trades in order \"to provide details of [the plaintiffs’] own positions in the market” sufficient to give rise to an inference of economic injury. Id at 461. . By contrast, a" }, { "docid": "6568837", "title": "", "text": "(S.D.N.Y.1999) (ruling that, “[e]ven if [defendant] violated every provision of the CEA or the CFTC rules, under the express language of § 22, [plaintiff] is only authorized to bring suit, and can only recover, for those violations that caused [plaintiff] to suffer ‘actual damages’ ” (quoting 7 U.S.C. § 25(a))). Here, the exchange-based plaintiffs have not adequately pleaded that they suffered actual damages as a result of the newly alleged trader-based conduct. In contrast to the alleged persistent suppression of LIBOR that was the sole basis for plaintiffs’ Amended Consolidated Class Action complaint, the day-to-day, trader-based LIBOR manipulation that is the basis for plaintiffs’ new allegations was episodic and varying in direction. That is, it consists of a number of discrete instances of allegedly false LIBOR submissions, and those submissions were, at times, artificially high and, at other times, artificially low. See, e.g. Exchange-Based Pis.’ PSAC ¶¶ 183-217. To plead actual damages based on such manipulation, plaintiffs would need to allege that the resulting artificiality in LIBOR caused them injury, in light of their trading of Eurodollar futures contracts. Plaintiffs have failed to meet this burden. In the PSAC, plaintiffs do not include any allegations that make plausible (1) that they transacted in Eurodollar futures contracts on days on which Eurodol lar futures contract prices were artificial as a result of trader-based manipulation of LIBOR, or (2) that their positions were such that they were injured. Cf. In re Energy Transfer Partners Natural Gas Litig., No. 4:07-cv-3349, 2009 WL 2633781 (S.D.Tex. Aug. 26, 2009) (requiring plaintiffs, in order to allege actual damages under the CEA, to ghow an overlap between the time period during which the manipulation occurred and the period during which plaintiffs traded their contracts). Indeed, despite the fact that plaintiffs indisputably have access to their own Eurodollar futures contract trading records, the PSAC is devoid of any references to particular Eurodollar contracts. See Tr. 38-41, 45. Rather than plead with such specificity, plaintiffs have simply alleged that each of the named plaintiffs “traded on-exchange based products tied to LIBOR such as Eurodollar futures” during the Class Period," }, { "docid": "3460073", "title": "", "text": "is why we now find that the possibility that they sustained some actual damages rises “above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Accordingly, claims based on plaintiffs’ activity in the Eurodollar futures market that are pled with the level of specificity as those in the chart above would not be ripe for dismissal. Although we have permitted plaintiffs to amend their complaint as specified, they still face many hurdles before recovery; chief among them, plaintiffs must demonstrate that they actually sustained damages as a result of defendants’ improper conduct, a burden that “pose[s] a serious challenge.” LIBOR I, 935 F.Supp.2d at 719. However, with their latest round of briefing, plaintiffs have finally articulated a claim that trader-based manipulation at least plausibly caused them actual injury. Thus, plaintiffs’ motion for leave to amend their complaint is granted insofar as they may add allegations, comporting with the standards outlined above, of day-to-day, trader-based manipulation against defendants Barclays and Rabobank based on conduct that occurred between January 2005 and August 2007. III. Scienter A. Procedural Background In LIBOR I, we found that the exchange-based plaintiffs “adequately alleged that defendants manipulated the price of Eurodollar contracts and that this manipulation caused [plaintiffs] actual damages.” LIBOR I, 935 F.Supp.2d at 719. To reach this conclusion, we applied the Second Circuit’s four-part test for pleading manipulation under the CEA: a plaintiff must show “(1) that [defendant] had the ability to influence market prices; (2) that [he] specifically intended to do so; (3) that artificial prices existed; and (4) that [defendant] caused the artificial prices.” DiPlacido v. Commodity Futures Trading Comm’n, 364 Fed.Appx. 657, 661 (2d Cir.2009) (citation omitted). With regard to the second element — scienter—we determined that “plaintiffs plausibly allege[d] that defendants specifically intended to manipulate the price of Eurodollar futures contracts,” as they were in a position to gain “concrete benefits” from the manipulation. LIBOR I, 935 F.Supp.2d at 715. Further evidence of these potential concrete benefits emerged from the Barclays settlement documents, the contents of which “do not describe merely a generalized interest in appearing profitable, but rather" } ]